#### STATE *vs.*JACOB B. TRAMMELL & OTHERS.

An indictment for a conspiracy, charging the object of the conspiracy te be, to cheat and defraud the citizens at large or particular individuals out of their land entries, is not supported by evidence, that the defendants conspired “ to make entries in the land office before it was opened, or before it was declared to be opened, or after it was opened, ■for the purpose of appropriating-the -lands to-their own use and excluding others.”

Appeal from the Superior Court of Law of Burke county, at Spring Term, 1842, before his Honor Judge Bailey.

The defendants were tried upon the folio wing indictment, which had been-removed from Macon to Burke county; to wit:

“State of North Carolina, } Superior Court of Law Macon county. j Spring Term, 1837.

The jurors for the State, upon their oath present, that Jacob B. Trammell, entry-taker of the said county of Macon, Jonathan Phillips, William Roane, Bynum W. Bell, John Strain, Benjamin Trammell, Bartlet Wilson, Young Am-mons *380and Thomas Ray, all of the county aforesaid, *being*ev^ &sPosed persons, and wickedly devising and intending to cheat and defraud all the good citizens of the State of divers iarge sums of money, and of their locations and of their entries of vacant and unsurveyed lands lying and being in .the said county, which lands wer.e, by law, subject to be entered by any of the good citizens, on ,the 2d day of May, in the year of our Lord one thousand eight hundred and thirty-six, with force and arms in the county of Macon aforesaid, .did, amongst .themselves, combine, conspire, confederate and agree together, to cheat and defraud the said good citizens of divers large sums of money, and of their respective entries ,of the said vacant and unsurveyed lands, and unlawr fully, unjustly and corruptly to secure and appropriate the same to their own use. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Jacob *B,*Trammell, and *(the others, naming them)*on the day and-year aforesaid, in the county aforesaid, in further pursuance of the said conspiracy, combination, confederacy and agreement, did proceed to a .certain room in the Court-house, in the town of Franklin, and did then and there enter divers tracts and parcels of land embracing fifty thousand acres find more .of the most valuable lands in the county of Macon aforesaid, in their own names and for their own use ber fore the said entry-taker’s office was opened for the reception of entries of vacant and unsurveyed lands from the said good citizens of the State, and to the fair and equal compel tition of the good citizens who should desire to make entries therein, it being about the hour of one o’clock, A. M. of the ¡day and year aforesaid, and of the day upon which the said .entry-taker’s office was by law required to be opened; and the jurors aforesaid, upon their oath aforesaid, do fnrther present that the said Jacob Trammell, entry-taker as aforesaid, and *(the others, naming them as*before) on the day .and year first aforesaid, in the county aforesaid, while so in the room in the said Court-House, in the town of Frank--lin, shut and locked up apart from the. other citizens of the State, in further pursuance of the said conspiracy, combinar ¡nation, confederacy and agreement, did unlawfully, secretly. *381deceitfully and corruptly enter in the said entry-taker’s of fice, and upon the books of the said entry-taker’s office many large valuable tracts and parcels of land as aforesaid, and the more effectually to deceive, defraud and injure the said good citizens who were then and there assembled with their locations and entries for vacant and unsurveyed lands in the said county, waiting for the said entry-taker’s office to be opened, that they might make their said entries therein, and the said Jacob B. Trammell, entry-taker as aforesaid, and *{the others, naming them as before)*at divers times,' gave out and proclaimed to the said good citizens so being assembled and crowded around the Court-House, waiting for an opportunity to make their said entries that they might go home, for that the said entry-taker’s office would not be opened for the reception oí entries until day-light, in the morning of the day and year aforesaid; by means of which conspiracy, combination, confederacy, agreement and false pre-tences, the said Jacob B. Trammell, entry-taker as aforesaid, and *[the others, naiiiing them as before)*fraudulently, corruptly, unlawfully and secretly did procure and enter in said entry-taker’s office, locations and entries for many large and valuable tracts or parcels of land in said county of Macon, in their own names, and for the use of themselves exclusively, to the great damage of the said good citizens, in contempt of the laws and statutes of the State, to the great hindrance of public justice, to the evil and pernicious example of all others in like case offending, and against the peace and dignity of the State. And .the jurors aforesaid, upon their oath aforesaid, do further present that the said Jacob B. Trammell, and *(the others, naming them)*all late of the county aforesaid, on the day and year aforesaid, with force and arms in the county aforesaid, unlawfully, corruptly and deceitfully designing and intending to cheat and defraud the said good citizens of the State of many large sums of money, did then and there, amongst themselves conspire, combine, confederate and agree together, falsely and fraudulently to cheat the said good citizens of divers large sums of money; and the jurors aforesaid, upon their oath aforesaid, do further present that the said J acob B. Trammell, entry-taker as aforesaid, and *382*(the others, as before named)*on the day and year aforesaid, in the county aforesaid, ’,in farther pursuance of, and according to, the said conspiracy, combination, confederacy and agreement among themselves, had as aforesaid, did, after they had so entered the vacant and uhsurveyed lands, being so.shut and locked up in the said Court-House as aforesaid, give out and proclaim .from the window of the said CourtHouse, that the good citizens might then and there make their locations’and entries of and for the said vacant and un-surveyed lands, with the 'intent to cheat and defraud the said good citizens of their money, which is required by law to be paid to the entry-taker, on making entries in his office, the said Jacob B. Trammell and *(tlie others, naming them)*well knowing that the said -vacant and unsurveyed lands had been previously entered by them in their own names while so shut up in the said room .as aforesaid, before the said entry-taker’s office was open to the fair and equal competition of all the said good citizens of the State, by means oi which said conspiracy, combination, confederacy, agreement and'false and deceitful -pretences and representations, the said Jacob B. Trammell, and *(the others, naming them)*deceitfully, eorrnptly and unlawfully did procure of and from the said good .citizens, large sums of money on entries previously made 'by themselves, and did thereby cheat and •defraud the said good citizens of divers large sums of money so paid in with and on the said entries and locations which had theretofore been entered by themselves as aforesaid, to the great damage of the said good citizens, in evasion of the entry laws of the State, tothe evil and pernicious example of all others in like cases offending, in -violation and contempt of the laws of the Stale, and against the peace and dignity of the Stale. And the jurors aforesaid do further present, that the said Jacob B. Trammell, and (the others before named) all of the said county of Macon, with force and arms in the county aforesaid, on the day and year first aforesaid, wickedly devising and intending to cheat, defraud and prejudice the good citizens of the State, did, amongst theselves, conspire, combine, confederate and agree together, falsely and fraudulently, to cheat and defraud the good citizens of *383the State, of divers large and valuable tracts or parcels of vacant and unsurveyed lands in the said county of Macon, and divers large sums of money,- to the great damage of the said good citizens, to the evil and pernicious example of all others, in like case offending, in contempt of the laws and against the peace and dignity of-the State; and the jurors a-loresaid, upon their oath aforesaid, do further present that the said Jacob B. Trammell, and *(the ottiers named as before)*all late of the said county of Macon, with force and arms in the county aforesaid; on tbe day and year first aforesaid, unlawfully, fraudulently and deceitfully did conspire, combine, confederate and agree together to cheat and defraud one Benjamin S. Britain of his money, entries and locations of vacant and unsurveyed land, in- the county of Macon, which were then and there presented at-the said entry-taker's office, to the great damage of the said Benjamin S. Brittain, in contempt of the laws of the State, to the evil and pernicious example of all others, in like case offending, against the peace and dignity of the State.

J. W. GUINN."

Before the trial, a *nolle prosseqjd*was entered as to Young Ammons and Bartlet Wilson. On the trial, it was proven that Jacob B. Trammell, the entry-taker of Macon county, with five clerks, to wit, Jonathan Phillips and others, on tbe 2d of May, 1836, were in the entry-taker’s office in the town of Franklin, after the hour of midnight — that they made a number of entries before the office was opened for the entries of other citizens, then assembled, in great numbers about the said office — that, when the window was opened and the entry-taker declared himself ready to receive entries and money, one Sedford was the first to hand in hisentrvat the window, and that his entry, when enrolled in the entry-taker’s books, was number 234. It also appeared that the-preceding entries on the book were in the names of Phillips and the others iff the room, and of some forty persons besides — that several hundred entries were thrust in at the-window in parcels with great rapidity and in great confusion; after Sedford’s — and that they, in many instances, were for *384the same lands as those of Phillips and others in the room. There was also evidence tending to shew that Trammell and Phillips had combined to secure for him, Phillips, and some of their friends, the entries of several parcels of land, before the office was announced by the said Trammell to be open for the reception of the entries of the citizens generally, by which apriority was obtained as to the date and number of the entries as placed in the entry-taker’s book. It was in evidence that there was a dense crowd of some four or five hundred persons assembled about the office of the entry-taker before and after the hour of twelve o’clock at night on the 2d day of May, and that they continued there till after the office was opened. There was also evidence shewing, that the defendant Trammell had advertised 8 o’clock of the said day as the hour at which the office was to be opened — -that he alleged the advertisement had been torn down, and he should give himself no further trouble about it. And there was also evidence to shew that there was a diversity of opinion as to the hour at which the office would be opened. There was no evidence to shew any combination between the defendants to obtain money from any person, or to defraud any individual of his own land. The proof was directed entirely to establish a combination and conspiracy to secure to themselves the entries of the vacant lands, in exclusion of the rights of others, and thereby gain a preference in time. The defendants’ counsel insisted that the evidence in the case only tended to shew (if any thing) a combination of the defendants to get the first entries of the vacant lands in Macon county, and obtain a preference over other citizens in entering the same, and that such combination would not constitute a conspiracy, however improper it might be. And, in the second place, it was insisted that even if such a combination did amount to a conspiracy, yet the proof did not support the indictment, by reason of its variance from the charge. The indictment, it was insisted, charged a conspiracy to cheat the citizens of their moneys, of their respective entries, and of their lands, and to cheat Benjamin T. Brittain of his moneys, entries and locations, and that proof of the defendants having formed a conspira*385cy to enter for their own use the lands in question, before the other citizens had an opportunity of making their entries, whereby they had by unlawful means obtained a preference over others, would not, in law, support any count in the indictment.

The court charged the jury, that to constitute a conspiracy, subjecting the parties to an indictment, it must appear that two or more persons combined together to effect some unlawful purpose — that, in this case,' if the jury believed from the evidence that the defendants or any two of them entered into a combination to make entries' in the entry-taker’s office before it was opened, or before it was declared to be opened or after it was opened, for the purpose of gaining a preference and appropriating the land to their'own use, and thereby excluding the other citizens, that, in law, amounted to a conspiracy, and it was sufficiently averred in the indictment. The jury returned a verdict of guilty aS to Tram-mell and Phillips, and judgment having been given accordingly, the said defendants appealed.

*Badger*(in the absence of the Attorney General) for the State.

*D. F. Caldwell*for the defendants.

Gaston, J.

The case, stated by his Honor to have been made out by the testimony, certainly exhibits a course of proceeding on the part of the defendants, exceedingly unfair and greatly to their discredit. But whether this conduct, on an indictment properly framed, would or would not subject them to the penalties of a conspiracy, we need not enquire, for we are clearly of opinion, that it did not support any of the charges contained in this indictment. It is of the first importance in the administration of criminal justice, that the proofs should correspond with the allegations, and for that reason, among others, the allegations are required to be distinct and explicit. It is not easy to understand those set forth in this indictment, but, by no reasonable intendment, can we so construe them as to accommodate the case made to the charges preferred. The case made is of a scheme *386contrived between the defendants and others, whereby *to*Pr0Cll!’e the first entries of vacant land in the entry-taker’s office, so as te secure to themselves a priority over- entries that might be afterwards made in that office by others. And it is expressly stated that it was no part of this scheme, to obfaiu money from any person, or' to' defraud any person of his land. Now what is the conspiracy charged? In the first count, ibis to cheat and defraud all the good citizens of the State of divers large sums of money and of their entries of vacant-and nnsurveyed land lying in the county of Macon, aud to secure and appropriate the same to their own use. What is an entry? It is lawful for a citizen to make with the entry-taker a claim for vacant land, setting forth in writing the situation of the land claimed, and the entry-taker is then to enter in his book a copy of this claim, and thereupon it becomes an entry. A copy of this entry, with a warrant to survey the laud wherein described, is afterwards to be delivered to the enterer, who, in due time, can perfect the entry with a grant. A combination or conspiracy to cheat a man of his entries of vacant and unsur-veyed lands, and to appropriate the same to the use of the conspirntors, necessarily means to deprive him, who has made such entries, but has not yet had them surveyed and granted, of the rightful benefits thereof, and to take these entries or the benefits thereof to the conspirators. It is said that the gist of a conspiracy is the unlawful concurrence of many in a wicked scheme, and that the crime of conspiracy is complete without any act having been done to carry it into execution. This consideration renders it but the more important that the charge of conspiracy should clearly set forth the purpose and object of the combination, as in these are to be found almost the only marks of certainty, by which the parties accused may know what is the accusation which they are to defend. The third count slates the purpose of the conspiracy as the first — and the fourth count states its purpose to cheat an individual, Benjamin S. Brittain, *of his money*and entries-. There is, therefore, the -same variance between the proofs and-these charges as there is between the proofs and the charge in the first count. The second count charges the *387purpose of the conspiracy to cheat the good citizens of-the State of large sums of money, of which purpose the case expressly states there was no evidence.

We hold, therefore, that his Honor erred in instructing the jury, that if they believed from the evidence that, the defendants entered into a combination to make entries in the office before it was opened, or before it was declared to be opened, or after it was opened, for the purpose of appropriating the lands to their own use-and excluding others, they were guilty of the conspiracy charged in the indictment.

This opinion must be certified to the Superior Court of -Burke, with instructions to set aside the verdict against the appellants — and, if the State chooses to proceed further in the case, to order a *venire de novo.*

.Per Curiam, Judgment reversed, and new trial awarded.