Note on Papers available on Appeal.

So in Drexel v. Pease, 133 N. Y. 129, at the close of the testimony before a referee under a reference not to hear and determine, but to report the referee's finding upon one or more specific facts involved in the issue, the attorneys for all the parties stipulated and consented that the referee “ may refer ad libitum to the printed case upon appeal in this action to ascertain any fact for his information."

The "case" thus referred to was one settled on appeal from an interlocutory judgment which directed the reference.-Held, by the Court of Appeals, that this stipulation carried with it to the Special Term every fact and every paper that was before the referee.

In Harris v. Sweetland, 48 Mich, 110, the court in an opinion by GRAVES, J., stated their view as to what parties may and may not stipulate upon, as follows: "They may waive many rights which may belong to them according to the practice of the courts; they may agree that certain judgments may be taken to exist without other proof; may waive objections to evidence not strictly proper; may yield the right to except for defects in pleading; and one may admit generally that the case is against him and suffer judgment without an investigation of the facts.

"But there are necessary limits. The parties cannot by agreement supersede the essential regulations made by law for the investigation of causes and adopt methods of their own which contravene the fundamental rules of proceeding and still retain the full right to claim revision in this court." Citing Gittings v. Baker, 2 Ohio St. 21; Conner v. Drake, 1 Ohio St. 166; Kelsey v. Forsyth, 21 How. (U. S.) 85. And the court there accordingly held that they could not give effect to a stipulation to consolidate cross-actions when the State practice did not allow such a course.

It is a practical consequence of this doctrine that if we stipulate for what the court has not power to do adversely, we get at most a consent decree; and even that may be void if the objection is jurisdictional. A consent decree which is merely erroneous, may be valid. Hawkins v. Blake, 108 U. S. 422, 432.

Second: The other principle (one of growing importance) is that an appellate court will not consider a question that was not considered and passed upon by the court below. It is in pursuance of this principle that it has been held that a judgment entered pursuant to a stipulation that it might be entered for the purpose of appeal is not appealable. Chapin v. Perrin, 46 Mich. 130.

This principle is not to be pressed too far; and the parties may, while reserving the right to review a ruling as to the law applicable (exception having been taken), agree by stipulation on the amount

People v. McKane.

of damages which will be applicable if that ruling be sustained, even though the ruling be as to the measure of damages. Carr v. Hills Archimedean Lawn Mower Co., 12 Daly, 332.

The object of the second principle here stated is both fairness to the court and counsel, and economy of judicial time by enabling the appellate court to confine its labors to the revision of what has actually been done. It is easy to see that the labor of an appellate court would be necessarily increased by sanctioning a stipulation which should bring new facts into the case or new documents into the evidence which were not considered by the court below; and something of the same inconvenience would result if the parties were allowed, without bringing the matter to the notice of the court of first instance, to exclude from the papers on which the appeal should be heard, some which were before the court of first instance, an i the absence of which might perhaps have varied their conclusion and rendered an appeal unnecessary.

PEOPLE v. MCKANE.

N. Y. Court of Oyer and Terminer, Kings County; March, 1894.

Criminal law; felony.] The misdemeanor of conspiring to commit a felony is merged in the felony, if the felony is actually committed; and if an indictment for such a conspiracy in charging overt acts shows the felony was actually committed, a demurrer thereto must be sustained.

Demurrers to an indictment.

The indictment charged a conspiracy on the part of John Y. McKane and twenty-one others to violate the provisions of the Election Law by rendering the registry lists of the Town of Gravesend inaccessible to the public for examination or copying.

Edward M. Shefard and Benjamin F. Tracy, Deputy Attorneys General for the People.

James Troy, for defendant McKane.

People v. McKane.

BARTLETT, J.-The indictment charges the defendants with conspiracy to commit certain crimes which are felonies under the election law.

It also alleges that the defendants, in pursuance of the conspiracy, actually did commit the felonies which they had conspired to commit. The case, therefore, squarely presents the question, whether under the law of the State of New York, a conspiracy to commit a felony when executed by the conspirators does not merge in the felony so as to prevent a prosecution for the conspiracy itself.

To understand the New York decisions on this question it is necessary to refer to the case of Commonwealth v. Kingsbury (5 Mass. 106), decided by the Supreme Judicial Court of Massachusetts in the year 1809. There it was held that a conspiracy to commit a felony which had actually been committed could not be punished as an offence distinct from the felony. Chief Justice Parsons, however, went further in his opinion, and declared that the same rule applied to an executed conspiracy to commit at misdemeanor.

The latter doctrine has not been generally approved; but so far as I have been able to discover, whenever the question has been touched upon by the higher appellate courts in the State of New York, the judges have assumed it to be the law that in the case of an executed conspiracy to commit a felony, the conspiracy, which is a misdemeanor, merges in the felony.

In 1827, the well-known case of Lambert v. People (9 Cow. 578) was decided in the Court of Errors by the casting vote of the president in favor of reversing the judgment below. The principal opinion for reversal was delivered by Senator Spencer, who cited the Kingsbury case in Massachusetts as a correct exposition of the law, and showed (on page 595) that the case of Lambert fell within the doctrine that a conspiracy to commit an offence of a higher grade than a misdemeanor merges in the higher offence when committed, because Lambert was indicted. VOL. XXXI.-12

People v. McKane.

for a conspiracy to cheat by false pretences, and that was an offence of higher grade; "it is urged," he said, “that this indictment charges an executed conspiracy; that the first agreement to commit the offence and every other preliminary and intermediate step is absorbed in the actual commission of it.

"I am deeply impressed with the weight of this objection. I cannot conceive how a crime can be split up with its several parts, and each of those parts made the subject of accusation. If a man committed a theft by robbing, I cannot understand how the two can be separated and the defendant tried for the theft alone. An indictment for murder always charges that the defendant made an assault on A. B., and him murdered with malice aforethought. If a general verdict of guilty were rendered on such an indictment, would it enter into the head of any man to inflict punishment merely for the assault? That assault is part of the crime and is absorbed in it. So in this case, the agreement to cheat, the false tokens or false pretences used are all concentrated and collected in the offence of cheating."

The minority opinion in the Lambert case was delivered by Senator Stebbins, and it is to be noted that while he dissented from the Massachusetts decisions in Commonwealth v. Kingsbury (5 Mass. 100), so far as it intimated that an executed conspiracy merged in a misdemeanor, which was its object, he expressly declared that the court properly held that a conspiracy to procure goods in a manner amounting to larceny was merged in the felony when executed (9 Cow. page 621), so that both reported opinions in Lambert v. People assume the correctness of the doctrine that an executed conspiracy to commit a felony merges in the felony.

In 1830, we find the same assumption in the opinion. of MARCY, J., in the celebrated case of the People v. Walther (4 Wend. 229), arising out of the alleged abduction. of William Morgan.

People v. McKane.

He rejected the view that a conspiracy to commit a misdemeanor was merged in the misdemeanor when committed, saying that where two crimes were of equal grade there could be no legal technical merger, but his language shows that he deemed the doctrine of merger applicable where the crime was of a higher grade than the conspiracy, and the object of the conspiracy was fully accomplished.

Both these cases were decided before the law made it essential in most indictments for conspiracy to allege the commission of some overt act in furtherance of the conspiracy, and it was suggested on the argument of the case at bar that this change in the law of conspiracy has had the effect to do away with the doctrine of merger, so far as it is sanctioned by these two decisions. That view cannot be entertained, however, in reference to the case of Elkin v. People (23 N. Y. 177), which was decided by the Court of Appeals in 1863, when the law in respect to alleging and proving overt acts was substantially the same as it is now. In the Elkin case, DAVIES, J., delivering the opinion of the court, distinctly assumed that the doctrine of merger was still in force and said that no felony being established by the proof, "no merger of the misdemeanor in it did or could take place."

It is argued that the cases which I have cited are not binding as authorities, inasmuch as what was said in the opinions in regard to the merger of a conspiracy in an executed felony was not necessary to any one of the decisions actually rendered, and that the observations on this subject, are, therefore, to be deemed obitor dicta. It is not clear that is true of the Lambert case, but even if it be true of all of them, still the uniform expression of the higher courts of the State on the question under consideration are not to be disregarded by the courts of first instance. Such utterances furnish the latter with the most trustworthy guides to a correct decision, in the absence of direct precedents.