The Waterbury Democrat., 1938-07-08

Memorandum on Motions to Strike Out and to Expunge from the Information.
 In passing on these motions certain general and fundamental considerations must be kept in mind. None of the motions pray that the entire information be stricken out. They are, therefore, more properly motions to expunge than motions to strike out. By whatever name they are de- nominated, however, 1t is true in criminal procedure, as it is in civil procedure, that they are to be granted only in event that the defect in the information is plain.
 The crime here charged is that of conspiracy. It is charged that all the accused conspired for an unlawful purpose, namely, to cheat and defraud the City of Waterbury, and to accomplish that purpose by unlawful means. It is proper in such case to charge not only the conspiracy and the purpose of it but also the overt acts done in pursuance of the conspiracy. And it is also to be borne in mind that, in the case of a conspiracy, each one of the conspirators, no matter when he entered it. is chargeable with all of the acts of all of the other conSpirators which are done in furtherance of the conspiracy. Moreover, in the case of a con- tinuing conspiracy such as is al- legged here in the statute of limita- tions does not begin to run until the termination of the conspiracy.
 It is obviously impossible in memorandum such as this to dis cusS all of the multitudinous re- quests to expunge contained in the various motions, separately.
 An analysis has been made of them and each has received con- sideration. The most that can be done here is to refer to those which occur most frequently in the motions and those concerning which there might be some ques- ton.
 Each of several of the accused move to expunge allegations set- ting forth the acts of other ac- cused concerning which it is not alleged that they had any know ledge and with which they say 1t is apparent that they had no con- nection. All of those acts are al- legged to have been in pursuance of the conspiracy in which, it is alleged that the moving party in each instance was conspirator. If those allegations are true, each of the accused is chargeable with those acts done by his fellow conspirators and therefore the allegations as to those acts are properly in the information against him.
 Most of the accused move to ex- punge the allegations concerning the burning and destruction of books and records because, they say, that is purely evidentiary, because all of the accused did not participate in it, and because, 1t is claimed, 1t occurred subsequent to the termination of the con- spiracy. It is obvious that these acts set up in the information as being overt acts done pursuant to the conspiracy and as being part of the unlawful means of &C., complaining the ultimate purpose of the conspiracy. They are, therefore, something more than evidentiary; they are done during the continuance of the conspiracy as a part of 1t and not after it is terminated; and they are acts with which all of the conspirators are chargebale.
 The allegations concerning the conferences with Levy in January and February 1888 and the pay ment to him of money to defray the expenses of his defense, the allegations concerning the aiding and abetting of Philip Coppeto to stay out of the state, the allega- tions concerning the placing of additional locks on doors in the city hall are likewise alleged as being done in pursuance of the conspiracy to defraud. A part of any fraud is the concealment of 1t from the one defrauded. It is apparent that. whether any of these acts taken by itself is illegal or not, it does form part of the conspiracy to defraud al- legged and is alleged as such. For