*101CONCURRING OPINION OP
PETERS, C. J.One of the appellants’ counsel complains that the indictment herein is uncertain and therefore insufficient and fatally defective for the reason that the acts, to wit, “combination or mutual undertaking or concerting together” and the terms descriptive of those acts, to wit, “malicious and fraudulent,” contained in the statute defining conspiracy (Sec. 4076, R. L. 1915), as well as the means employed and the unlawful purposes to be effected as enumerated in the statute defining the offense of unlawful use of explosives (Sec. 4028, R. L. 1915), are alleged in the alternative.
Section 4076, R. L. 1915, defines conspiracy as follows: “A conspiracy is a malicious or fraudulent combination or mutual undertaking or concerting together of two or more, to commit any offense or instigate any one thereto, or charge any one therewith; or to do what plainly and directly tends to excite or occasion offense, or what is obviously and directly wrongfully injurious to another.”
Section 4028, R. L. 1915, defines the unlawful use of explosives as follows: “Any person unlawfully using dynamite or other explosive chemical or substance for the purpose of inflicting bodily injury upon, or to terrify and frighten, any person, or to injure or destroy any property, or damage the same in any manner, shall be liable, upon conviction, to pay a fine of not less than two hundred and fifty dollars, nor more than five thousand dollars, and to imprisonment at hard labor for a term not to exceed twenty years.”
Ordinarily where a statute defining a criminal offense enumerates in the disjunctive two or more acts, the com*102mission of any one of which would constitute a separate and distinct offense, such acts may not be alleged in the alternative in the same count of an indictment. Nor may two or more intents be alleged in the alternative in the same count of an indictment as qualifying a single act denounced in a statute as criminal when committed with any one of such intents. To do so renders the count of the indictment uncertain and hence insufficient and fatally defective. All allegations in the alternative are not, how-' ever, fatal to an indictment. There are several generally accepted exceptions to the rule, within which the alternative allegations found in both counts of the indictment herein fall.
Were both counts of the indictment in the instant case within the rule and the provisions of the simplified Criminal Procedure Act (Sec. 3791D, R. L. 1915, Act 215, S. L. 1915) incapable of curing the defect nothing that the defendants might do either expressly or by implication could alter the situation and they would be entitled to their discharge upon appropriate proceedings attacking the sufficiency of the indictment. That the defendants under such circumstances failed to demur to the indictment or expressly stated that they understood it or expressly agreed that the indictment should read differently than it does and that the uncertainty now complained of should be removed by the substitution of certainty, would be immaterial. Failure of an indictment to state facts sufficient to constitute an offense against the law is jurisdictional and is available to the defendant at any time. The fifth article of the amendments of the Constitution provides that “No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury * * Article VI of the amendments of the Constitution provides: “In all criminal prosecutions the *103accused shall enjoy the right * * * to he informed of the nature and cause of the accusation * * •*.” The effect of these provisions is to entitle the defendant, charged with a capital or otherwise infamous crime (the crime of conspiracy in the first degree is an infamous one), to be informed of the nature and the cause of the accusation against him by an indictment as known at common law. Mott v. State, 29 Ark. 147, 149; Eason v. The State, 11 Ark. 481, 500; State v. Kyle, 166 Mo. 287, 56 L. R. A. 115, 120; Ex parte Slater, 72 Mo. 102, 106; Hewitt v. State, 25 Tex. 722; Joyce on Indictments, Secs. 11, 12. These provisions of the Constitution cannot be waived. They are not solely for the benefit of the accused. The public is interested. Renigar v. The United States, 172 Fed. 646, 656; Ex parte McClusky, 40 Fed. 71, 74. An indictment as thus defined is essential to the court’s jurisdiction. Renigar v. United States, supra; Ex parte McClusky, supra; Ex parte Bain, 121 U. S. 1, 12.
The question of waiver is not involved because both counts of the indictment are good. And this is so irrespective of the provisions of Act 215, S. L. 1915.
Where the words or terms alleged in the alternative are synonymous an indictment is not within the rule against alternative allegations. The word “combination” and the phrases “mutual undertaking” and “concerting together” are synonymous. The legislature certainly did not intend to make separate and distinct offenses of the several acts denounced by the statute when maliciously or fraudulently committed. Under the circumstances the allegation of the several acts in the disjunctive, that is to say, that the defendants did “combine or mutually undertake or concert together” does not render the indictment bad.
Nor does the description of the “combination or mutual undertaking or concerting together” as “malicious or *104fraudulent” render the counts of the indictment fatally defective. ' These terms are obviously not synonymous. Both terms are contained in the statutory definition of the offense. Bnt where after the rejection of allegations in the affirmative the indictment or counts of an indictment containing such allegations fully advise the defendant of the nature and the cause of the accusation against him, the constitutional requirements have been fully met.
Conceding to the authorities the effect that the indictment by reason of the alternative allegation “maliciously or fraudulently” neither charges that the “combination or mutual undertaking or concerting together” Avas “malicious” nor “fraudulent” I am of the opinion that even after the rejection of both terms and considering the indictment as though both terms were absent therefrom the indictment is sufficient. To unlawfully use dynamite or other explosive chemical or substance for the purpose of inflicting bodily injury upon or to terrify and frighten any person or to injure or destroy any property or damage the same in any manner is a malicious act as the term “malicious” is defined by section 3663, R. L. 1915. The object of the conspiracy as alleged in the indictment was “to unlawfully use, and cause to be exploded dynamite or other explosive chemical or substance for the purpose of inflicting bodily injury upon one J. Sakamaki, or to terrify and frighten him, the said J. Sakamaki, or to injure, destroy or damage a certain house * * which said house Avas being occupied by the said J. Sakamaki as his place of abode * * *.” The object of the conspiracy was therefore malicious. The conspiracy was thereby rendered malicious. The indictment therefore alleges the conspiracy as malicious.
Ordinarily where a statute attaches to an offense certain technical predicates these predicates must be em*105ployed in an indictment charging such offense. As a rule it is not prudent to substitute other terms for those employed in the statute. But it may be done where the Avord or term substituted is equivalent to the word or term used in the statute or is a more extensive signification and includes it. People v. Vance, 21 Cal. 400; Williams v. State, 64 Ind. 553; State v. George, 34 La. Ann. 261; Roberts v. State, 55 Miss. 421; State v. Watson, 65 Mo. 115; Tully v. People, 67 N. Y. 15; Eckhardt v. People, 83 N. Y. 462; State v. Thorne, 81 N. C. 555; United States v. Nunnemacher, Fed. Cas. No. 15,903; King v. Brady, 1 Bos. & Pul. 187, 126 Eng. Rep. 851.
A conspiracy may be “malicious” or “fraudulent” accordingly as its object is a malicious or fraudulent act or the means to be employed be malicious or fraudulent although the object of the conspiracy be lawful. The allegation of the malicious object of the conspiracy is-tantamount to the allegation of a malicious conspiracy. It is a substitute of the technical predicate “malicious” as contained in the statutory definition of conspiracy. The language of the indictment inevitably implies that the conspiracy was malicious. The allegations of the object of the conspiracy qualify and describe the conspiracy. They supply and in terms are a substitute for the word “maliciously” as fully as though the word “maliciously” were present in the indictment. The indictment fully advised the defendants that they were charged with a malicious conspiracy to terrify and frighten J. Sakamaki or inflict bodily injury upon him or injure or destroy his property by the unlawful use of dynamite or other explosive chemical or substance.
A case peculiarly in point is that of Tapack v. United States, 220 Fed. 445. There the defendants were charged under section 5440 of the Revised Statutes of the United States (Sec. 37, Penal Code of 1909) Avith conspiracy to *106violate the provisions of section 29b (1) of the Bankruptcy Act, which made it an offense for any one to “knowingly and fraudulently” conceal while a bankrupt or after his discharge, from his trustee, any of the property belonging to his estate in bankruptcy. In substance the indictment charged that the defendants in order to defraud the creditors of the bankrupts did corruptly, wickedly and unlawfully conspire, etc., with the bankrupts to conceal their property and to continue to conceal the same after they should be adjudicated bankrupts and that after the adjudication in bankruptcy they did secrete and conceal the said property and continued to secrete and conceal the same. The words “knowingly and fraudulently” were omitted from the indictment and those terms as descriptive of the act of concealment as contained in the statute défining the offense which was the object of the conspiracy were totally absent. The court sustained the indictment using the following language (p. 447) : “In earlier days, when excellent reasons existed for construing an indictment strictly so as to favor life and liberty, it is probable enough that such an indictment as this might have been held deficient in precise statement; and, indeed, some comparatively recent decisions still reflect something of the earlier spirit. But there can be no doubt that the prevailing tendency now, both in statute law and in decision, is to be satisfied with substance rather than to insist upon rigid adherence to form; an indictment will be held good if it substantially charge the particular offense for which the defendant is about to.be, or has already been, tried. Burton v. U. S., 202 U. S. 344, 25 Sup. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 362; Dunbar v. U. S., 156 U. S. 195, 15 Sup. Ct. 325, 39 L. Ed. 390; McNiel v. U. S., 150 Fed. 82, 80 C. C. A. 36; State v. Stein, 48 Minn. 466, 51 N. W. 474; State v. Smith, 63 Vt. 201, 22 Atl. 604; Worsham v. Murchison, 66 Ga. 715.”
*107Nor do the allegations in the disjunctive of the explosives to he employed and the purposes of their unlawful use render the indictment uncertain or defective. The gist of the offense is the conspiracy. The indictment in terms alleges that the conspiracy was formed to use dynamite or other explosive chemical or substance to accomplish any one of the unlawful purposes denounced by the statute. It charges in effect that although the means to be employed and all the purposes to be accomplished were contemplated by the conspirators the selection of those means and the unlawful use to which they were to be put were optional. In other words, it charges that the defendants conspired to employ alternate means to bring about alternate results. They did not conspire, according to the indictment, to conjunctively use all the means nor to conjunctively accomplish all the purposes enumerated in the statute. Were the substantive offense defined by section 4028, R. L. 1915, the sole subject of the indictment obviously neither the means nor the purposes of the unlawful use enumerated in the statute could properly be alleged in the disjunctive. But here the indictment is conspiracy. However many crimes may have been contemplated by the. conspirators the conspiracy to commit such crimes was but a single offense. I see no difference in principle between a conspiracy to commit some one or all of several criminal acts and a conspiracy to commit several criminal acts. An indictment charging a conspiracy to commit more than one criminal act is not duplicitous. State v. Sterling, 34 Ia. 443-444; United States v. Aczel, 219 Fed. 917, 921; John Gund Brewing Co. v. United States, 206 Fed. 386; State v. Dyer, 32 Atl. (Vt.) 814, 817; United States v. Eccles, 181 Fed. 906, 908. The converse is necessarily true that a conspiracy may be formed to commit any one or all of several offenses. If so it should be so alleged and neces*108sarily the offenses which are the alternate objects of the conspiracy should be and could only be alleged in the disjunctive.
By the indictment in the case the constitutional guaranties afforded the defendants were fully observed. It may not he inappropriate to conclude by adopting the language of the United States Supreme Court in the case of Burton v. United States, 202 U. S. 344, at 372. With the substitution of appropriate language indicating its application to all of the defendants the citation is particularly apt: “* * * the accused was informed with reasonable certainty by the indictment of the nature and cause of the accusation against him * * *. The averments of the indictment were sufficient to enable the defendant to prepare his defense, and in the event of acquittal or conviction the judgment could have been pleaded in bar of a second prosecution for the same offense. The accused was not entitled to more, nor could he demand that all the special or particular means employed in the commission of the offense should be more fully set out in the indictment. The words of the indictment directly and without ambiguity disclosed all the elements essential to the commission of the offense charged, and, therefore, within the meaning of the Constitution and according to the rules of pleading, the defendant was informed of the nature and cause of the accusation against him.”
I agree in all other respects with the majority opinion and join in the conclusion that the defendants’ exceptions should be overruled.