Commonwealth v. Donaghue

The Facts

Defendant charged with criminal conspiracy:  “That they unlawfully and corruptly conspired with one another and others, to the grand jury unknown, to engage in the business of lending money in small amounts to poor and necessitous wage earners at excessive, exorbitant and usurious rates of interest and to prevent the recovery of such interest paid by said borrowers.”

Procedural History

Acquitted at trial, defendants appeal.


“Criminal conspiracy is (1) a corrupt combination (2) of two or more persons, (3) by concerted action to commit (4) a criminal or an unlawful act; (a) or an act not in itself criminal or unlawful, by criminal or unlawful means; (b) or an act which would tend to prejudice the public in general, to subvert justice, disturb the peace, injure public trade, affect public health, or violate public policy; (5) or any act, however innocent, by means neither criminal nor unlawful, where the tendency of the object sought would be to wrongfully coerce or oppress either the public or an individual.”

The Issue

Whether to sustain conviction for conspiracy, the conspired act must be a criminal or unlawful act.

The Holding/Reasoning

No, conviction upheld.  “According to the overwhelming weight of authority the objects of the conspiracy need not be an offense against the criminal for which an individual could be indicted or convicted, but it is sufficient if the purpose be unlawful.”  The term unlawful does not necessarily means the pure violation of criminal code; it means any and every act which violates the legal rights of another citizen.  “So it may be said that within the contemplation of the offense of criminal conspiracy are the acts which by reason of the combination have a tendency to injure the public, to violate public policy, or to injure, oppress, or wrongfully prejudice individuals collectively or the public generally.”

On appeal the court must apply unambiguous interpretation of the statute to overturn.  Kentucky statute says that civil contracts with interest rates above 6% are void.  The only penalty is remedial repayment to the borrower.  However, the act itself isn’t criminal.  The remedy is simply that the borrower does not need to pay the owed amount.  To purposefully prevent public justice in the way the defendant has done is a violation of public policy.  “So a conspiracy which has that effect is clearly an indictable offense.”


The court goes too far in extending the violation of the conspiracy act.  They usurp the power of the legislature, who deliberately sets the parameters of crime and then extends the act of conspiracy to those particular parameters, but no further.  The court, by allowing conspiracy to apply non-criminal acts, is therefore extending the reach of conspiracy code beyond the intent of the legislature.  The defendants did not enter into unlawful conduct as described in Kentucky code and therefore should not be subject to conspiracy charges.

Comment:  In Indiana, it is required that the defendants violate a felony in order to be guilty of conspiracy to commit a crime.

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