Opinion
File No. 22539
An information charging a defendant with conspiracy (§ 53a-48) must allege both an agreement with one or more persons to commit a crime and an overt act in furtherance of that agreement by one of the alleged conspirators.
Memorandum filed June 1, 1978
Memorandum on defendant's motion for bill of particulars.
Mary M. Galvin, assistant state's attorney, for the state.
Richard T. Meehan, Jr., for the defendant.
The second count of this information alleges that the defendant and one Riccardi conspired to commit the crime of robbery. No overt act is alleged and no reference to an overt act appears in the information.
The conspiracy statute, General Statutes § 53a-48, requires an agreement with one or more persons to commit a crime and "an overt act in pursuance of such conspiracy" by any one of them. The two essentials of the crime of conspiracy, therefore, are the agreement and an overt act by any one of the alleged conspirators.
Whether it is necessary to allege an overt act in the information has apparently never been passed upon by the Connecticut Supreme Court. There are indications in State v. Bradley, 48 Conn. 535, that in England it was not necessary to allege an overt act, and that an allegation of conspiracy in general terms was sufficient. This practice has been followed to some extent in the United States, "but the more usual course is to allege, as was done in this case, the acts done pursuant to the conspiracy . . . ." Id., p. 549. It is not evidential or erroneous to allege the overt act or acts. See State v. Devine, 149 Conn. 640, 648.
It appears to the court that the language of the statute requires the allegation of two elements for a conspiracy, and in this instance only one of them has been alleged. The older cases under previous statutes, similar in content if not specific words, did not lay down a definite rule, even though the previous statutes included both the agreement to conspire and "any act in furtherance of such combine" by any one or more of the alleged conspirators. General Statutes, Rev. 1958, § 54-197; General Statutes, Rev. 1949, § 8876. Nevertheless it would appear that most cases included allegations of the second element so that the question did not lend itself to decision on the point raised here. The one overt act is an essential element of the offense and in language of one kind or another should be alleged in the information. See State v. McGee, 81 Conn. 696, 699.