Michigan Law Review

Volume 40 Issue 6

1942

CRIMINAL LAW AND PROCEDURE - CONSPIRACY TO COMMIT A

MISDEMEANOR AS A FELONY
Michigan Law Review

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Recommended Citation
Michigan Law Review, CRIMINAL LAW AND PROCEDURE - CONSPIRACY TO COMMIT A MISDEMEANOR
AS A FELONY, 40 MICH. L. REV. 905 (1942).
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1942] RECENT DECISIONS

CRIMINAL LAW AND PROCEDURE - CoNsPIRACY TO CoMMIT A Mrs-

DEMEANOR AS A FELONY - The defendant was indicted for conspiring to
destroy the poles and wires of an electric public utility, the destruction of such
property being a statutory misdemeanor.1 The indictment was prosecuted under
the provision of the Michigan statutes which states that all crimes indictable at
common law are punishable as felonies unless specifically declared otherwise by
the statute.2 The crime of conspiracy comes under this "common-law offense"
provision. Upon denial of his motion to dismiss, defendant sought mandamus to
review the ruling. Held, an agreement to do an act made a misdemeanor by
statute is a common-law conspiracy,8 and such conspiracy is by statute made
punishable as a felony. People v. Causley, 299 Mich. 340, 300 N. W. I 11
(1941).
The contention is often made that the crime of conspiracy cannot be pun-
ished more severely than the substantive crime itself. There are three grounds
on which such a contention may be based. The first is the common-law doctrine
of the merger of o:ffenses.4 At common law a conspiracy, being a misdemeanor,
merged with the felony if the latter was accomplished. 5 This would seem to
indicate that the conspiracy is the lesser crime and cannot be punished more
harshly than its object. The second ground is that a conspiracy is nothing more
than an attempt, and, as an attempt cannot be punished more severely than the
substantive crime, neither can a conspiracy. 6 The third ground is that it is
illogical to adhere to a ruling which makes a contract to commit a crime more
reprehensible in the eyes of the law than the crime itself. However important
these three theories may have been at common law, they are not tenable in
present-day courts. The courts no longer apply the merger doctrine to con-
spiracy/ as conspiracy is now deemed to be a crime entirely distinct from the ob-

1 25 Mich. Ann. Stat. (Henderson, 1938), §28.615.

2 Id., § 28.773.
8 This point appears to be so well settled in the law that it is surprising that the

court gives such attention to it. CLARK and MARSHALL, CruMES, 4th ed., § 13 l ( 1940) ;
State v. Buchanan, 5 H. & J. (Md.) 259 {1821).
4 A merger occurs where the same criminal act constitutes both a misdemeanor and

a felony, and one is a necessary constituent of the other. CLARK and MARSHALL,
CRIMES, 4th ed.,§ 6 (1940); l BISHOP, CRIMINAL LAw, 9th ed.,§ 787 (1923).
5 The basis for this doctrine in the United States is Commonwealth v. Kingsbury,

5 Mass. 106 (1809).

6 Hartmann v. Commonwealth, 5 Pa. 60 {1846); Williams v. Commonwealth,

34 Pa. 178 {1859).

7 State v. Setter, 57 Conn. 461, 18 A. 782 {1889); 37 A. L. R. 778 (1925);

75 A. L. R. 14II (1931); l BISHOP, CRIMINAL LAW, 9th ed.,§ 814 (1923); Regina
v. Button, 3 Cox C. C. 229, II Q. B. (Adol. & E. N. S.) 929 {1848). The entire
merger doctrine, as applied to all crimes, is being abandoned. See People v. Tavormina,
257 N. Y. 84, 177 N. E. 317 (1931). The doctrine of Commonwealth v. Kingsbury,
5 Mass. 106 (1809), appears to be overruled by later decisions. Commonwealth v.
Stuart, 207 Mass. 563, 93 N. E. 825 (1911).
 MICHIGAN LAW REVIEW [ Vol. 40

ject of the conspiracy, and may be punished even though the substantive crime
has been committed. 8 The defendant may be convicted of both crimes and the
court may impose a cumulative sentence.9 The analogy between conspiracy and
attempt has been declared by some courts to be fallacious, inasmuch as a failure
to consummate the crime is an element of attempt. These courts hold that one
cannot be punished for attempt when the actual crime has been committed 10
since the doctrine of merger is deemed to apply.11 Thus a conspiracy is some-
thing more than an attempt, and should not be restricted by false analogies.
Finally, not only public policy and sound reasoning, but also respectable author-
ity, support the view that a conspiracy may be more severely punished than the
substantive crime.12 The reason is that a combination of two or more to commit
a criminal act creates a greater potentiality of harm to the public, and requires
greater restraining forces, than does an individual offender.18 Within this
reason lies the limitation which must be placed upon the use of such a doctrine to
prevent its abuse. That is, the trial court should, in its sound discretion, call the
doctrine into play only when there is greater potentiality of harm generated by
the forming of a conspiracy.14 To prevent misapplication of the doctrine, the
appellate courts should be given the power to commute the sentence imposed by
the trial court, rather than being limited to a reversal of the judgment.15

8
United States v. Rabinowich, 238 U. S. 78, 35 S. Ct. 682 (1914); Murry v.
United States, (C. C. A. 8th, 1922) 282 F. 617; People v. Blumenberg, 271 Ill.
180, IIO N. E. 788 (1915); State v. Setter, 57 Conn. 461, 18 A. 782 (1889); People
v. Eiseman, 78 Cal. App. 223, 248 P. 716 (1926), writ of error dismissed, 273 U.S.
663, 47 S. Ct. 454 (1927). ·
9
Hostetter v. United States, (C. C. A. 8th, 1926) 16 F. (2d) 921.
10
8 R. C. L. 277 (1915); l B1sHoP, CRIMINAL LAw, 9th ed., §§ 604, 729
(1923); West v. Commonwealth, 156 Va. 975, 157 S. E. 538 (1931); Sneed v.
United States, (C. C. A. 5th, 1924) 298 F. 9u; Graham v. People, 181 Ill. 477,
55 N. E. 179 (1899). That decision denounced State v. Shepard, 7 Conn. 54 (1828),
which held that an attempt could be punished, though the crime had been consummated.
11
State v. Gannon, 75 Conn. 206, 52 A. 727 (1902). Nevertheless the resem-
blance between attempt and conspiracy should not be lost sight of in determining the
actual punishment for particular conspiracies.
12
Clune v. United States, 159 U.S. 590, 16 S. Ct. 125 (1895); United States
v. Stevenson (No. 2), 215 U.S. 200, 30 S. Ct. 37 (1909); United States v. Rabino-
wich, 238 U. S. 78, 35 S. Ct. 682 (1914); State v. McAdams, 167 S. C. 405, 166
S. E. 405 (1932); Johnson v. People, 124 Ill. App. 213 (1906); State v. Setter, 57
Conn. 461, 18 A. 782 (1889).
18
2 B1sHoP, CRIMINAL LAW, 9th ed., § 180 (1923); Mitchell v. United States,
(C. C. A. 2d, 1916) 229 F. 357; Shields v. People, 132 Ill. App. 109 (1907);
United States v. Rabinowich, 238 U.S. 78, 35 S. Ct. 682 (1914).
14
Obviously, this would permit the court to make its own classification of the
crime in each case. Quaere whether this could be done under the wording of the
Michigan statute, 25 Mich. Ann. Stat. (Henderson, 1938), § 28.773. The court in
the principal case seems to assume, however, that it does have this power.
15
Because of the view that the length of sentence is within the uncontrolled dis-
cretion of the trial judge, federal appellate courts cannot commute the sentence im-
posed. 29 A. L. R. 313 ( l 924). The result is either that prosecutors and trial judges
take advantage of the federal conspiracy statute to an extent which borders on the
absurd, or else that the appellate court must reverse the judgment and completely free'
1942} RECENT DECISIONS

the defendant. Nash v. United States, (C. C. A. 2d, 1932) 54 F. (2d) 1006, cert.
denied 285 U. S. 556, 52 S. Ct. 457 (1932); Harrison v. United States, (C. C. A.
2d, 1925) 7 F. (2d) 259; Parillo v. United States, (C. C. A. 3d, 1924) 299 F.
714; Vannata v. United States, (C. C. A. 2d, 1923) 289 F. 424; United States v.
Kissel, (C. C. N. Y. 1909) 173 F. 823, reversed on other grounds, 218 U.S. 601,
31 S. Ct. 124 (1910).