delivered the opinion of the Court:
The indictment in this ease was fonnd under the 46th section of the Criminal Code, Rev. Stat. 1874, see. 46. That ¡section provides, in substance, that if two' or more persons conspire and agree together, with the fraudulent or malicious intent wrongfully and willfully to do any illegal act, injurious to the administration of public justice, every offender, on conviction, shall be imprisoned in the penitentiary not exceeding three years, or fined not exceeding $1000. It will be observed the indictment charges the offense, substantially, in the language of the statute, that defendants “ unlawfully, feloniously, willfully and fraudulently did conspire and agree together, with the fraudulent intent wrongfully and wickedly to injure the administration of public justice, by then and there unlawfully, willfully and fraudulently attempting to obtain and procure a decree of divorce,” in the Superior Court of Cook county, and that is all the law requires. By our laws every indictment or accusation of the grand jury shall be deemed sufficiently correct which states the offense in the term® and language of the Criminal Code, or so plainly that the nature of the offense may he easily understood. Rev. Stat. 1845, p. 181.
It is suggested, in argument, that the statute under which defendants were indicted was copied from the Criminal Code of Iowa, and, prior to its adoption by our legislature, it had received a construction, by the Supreme Court of that State, holding that an indictment under this statute must specifically set forth the illegal acts which constitute the offense, and that general averments are not sufficient,—citing The State v. Stevens, 30 Iowa, 391, State v. Porter, 28 id. 554, State v. Jones, 13 id. 269. Even under the construction contended for, we think the “ illegal act ” that constitutes the offense is sufficiently set forth, viz: that the accused unlawfully, willfully and fraudulently attempted to obtain a divorce in the Superior Court.
But waiving that view, as was said in McCutcheon v. The People, 69 Ill. 601, in view of our statute, which makes it sufficient to set forth the offense in the indictment or information in the language of the act creating it, or so plainly that the nature of the accusation can be readily understood, and of the uniform construction given to it by our decisions, it can hardly be said the legislature, in adopting the statute of another State, intended also to adopt a construction in direct antagonism, with our laws, and in conflict with the practice' that has prevailed under them through a long series of years. At most, it is but a presumption, and may be repelled when such construction is found to be inconsistent with the spirit and policy of our laws. The presumption should rather be indulged the statute under consideration was enacted in view of existing laws, as construed by former decisions of this court. Under this view of the law, a majority of the court hold the indictment is sufficient.
The point is made, the verdict is against the weight of the evidence. We do not think so. We have examined, with care, the testimony contained in the record, and see no reason to be dissatisfied with the finding of the jury. The credibility of the several witnesses was a question for the jury, and if they gave credit to the testimony the conviction was fully warranted. According to the testimony, defendants were guilty of a most flagrant conspiracy to “ injure the administration of public justice.”
On the trial the jury found the accused guilty, and fixed the term of imprisonment in the penitentiary at three years. A motion for a new trial was entered, but the court overruled that motion, and sentenced defendants to imprisonment in the penitentiary for one year, instead of three years, the term fixed by the verdict of the jury. We are of opinion, all the members of the court concurring, the action of the court in fixing the term of imprisonment at one year, was irregular, and finds no warrant in the statute nor in the practice that prevails in the courts, that w-e are aware of. The court had no more rightful authority to mitigate the measure of punishment than it would have to increase it. It was the duty of the court, either to pronounce judgment on the verdict, or set it aside and award a new trial. But defendants have not assigned the' action of the court in this regard, as error, and it need not be further considered.
On the whole record, a majority of the court are of opinion the judgment should be affirmed, which is done.
Judgment affirmed. ■
Hr. Justice Scholfield:I am unable to agree with my brethren in the conclusion reached in this case. I think the indictment bad, and that judgment should not, therefore, have been given on the verdict.
When the object, to accomplish which the alleged conspiracy is formed, is not, in itself, unlawful, but the gist of the offense consists in the use of unlawful means to accomplish' the object, the means must be particularly set forth in the indictment. 2 Wharton’s Grim. Law (7th Ed.) § 2313; 2 Bishop’s Crim. Procedure, § 221; Alderman v. People, 4 Mich. 414; State v. Mayberry, 48 Maine, 218; State v. Potter, 28 Iowa, 554; State v. Stevens, 30 id. 391; State v. Jones, 13 id. 269.
This rule was expressly recognized by this court in Smith v. The People, 25 Ill. 23, where it was said: “We may safely assume that it is indictable to conspire' to do an unlawful act by any means, and also that it is indictable to conspire to do-any act by unlawful means. In the former case, it is not necessary to set out the means used, while in the latter it is, as they must be shown to be unlawful.”
. The object of the alleged conspiracy, here, was to obtain a divorce. The obtaining of a divorce is not, in itself, an unlawful act. On the contrary, it is authorized by statute, and it can only become unlawful when ■ the means by which it is sought to be obtained are such as are unauthorized by law; and, under the rule laid down by the foregoing authorities, those means must be particularly stated in the indictment.