The defendant and one Searles are indicted for conspiring “with intent falsely, fraudulently, and maliciously,” to *256cause one J. Wesley Dunham to be prosecuted for the crime of attempting to murder the defendant by poison; and a verdict of guilty having been found against the defendant, he moves that-judgment may be arrested, because, as he contends, the indictment is insufficient in not averring that he knew, or had reasonable cause for believing, that the said Dunham was innocent. We have examined the indictment with care, and we think it contains an averment of every fact necessary to constitute the offense of criminal conspiracy. It follows closely and accurately the words of the statute on which it is founded. H. S., c. 126, § 17. The statute makes it criminal for two or more persons to conspire, “with intent falsely, fraudulently, and maliciously,” to cause another person to be prosecuted for an offense of which he is innocent. The indictment avers that the defendant and Searles did conspire, “with intent falsely, fraudulently, and maliciously,” to cause Dunham to be prosecuted for an attempt to murder and kill, “of which crime the said Dunham was innocent.” Here we have an averment of the act of conspiring, and an averment of the co-existing intent which made the act criminal. The charge is not merely of an intent to accuse and prosecute, but of an intent to falsely accuse and prosecute. The former intent may be innocent, but the latter is always criminal. The indictment not only charges an act of conspiracy, but it also charges a co-existing intent which characterizes and makes the act criminal. In this particular it follows the very words of the statute ; and we think nothing more can be required.
The motion to have the verdict set aside as against evidence is not properly before us. Such a motion can be heard only in the court below.
Exceftions overruled, and the motion dismissed.
Peters, C. J., Daneorth, Virgin, Emery and Haskell, JJ., concurred.