CHARACTER AND NATURE OF THE OFFENSE: See note 51 Am. Dec. 82. Generally, in the various states conspiracy is indictable as a common-law offense, or exists as such outside of the statutes: State v. Norton, 23 N. J. L. 33; State v. Pulle, 12 Minn. 164; State v. Cawood, 2 Stew. 360; Commonwealth v. Hunt, 4 Met. 111; 38 Am. Dec. 347; 4 Lawson's Criminal Defenses, ed. 1887, 537. But see State v. Ohio etc. R. R. Co., 23 Ind. 362; Beal v. State, 15 Id. 378; Estes v. Carter, 10 Iowa, 400. And conspiracy, at the common law, is not cognizable as such in the federal courts, not being defined by any act of Congress as an offense against the United States: United States v. Martin, 4 Cliff. 156; United States v. Walsh, 5 Dill. 58; 4 Lawson's Criminal Defenses, ed. 1887, 561, 562.

WHAT CONSTITUTES INDICTABLE CONSPIRACY.-To constitute indictable conspiracy, there must be a combination of two or more persons to commit some act known as an offense at common law, or that has been declared such by statute: Alderman v. People, 4 Mich. 414; 69 Am. Dec. 321; People v. Richards, 1 Mich. 216; 51 Am. Dec. 75, and note 83, 90; State v. Noyes, 25 Vt. 415, 421; Commonwealth v. Hunt, 4 Met. 111; 38 Am. Dec. 347; 4 Lawson's Criminal Defenses, ed. 1887, 537; though "it is by no means necessary that the offense be malum in se. It is sufficient if it be criminal, or even be prohibited under penalties by statute": Hazen v. Commonwealth, 23 Pa. St. 355, 363. A conspiracy may be indictable, although the act contemplated be not itself indictable, or where the act intended, if committed by an individual, would not be criminal: State v. Norton, 23 N. J. L. 33, 44, and cases cited; State v. Rowley, 12 Conn. 101; note to 51 Am. Dec. 83. And "an indictment lies, not only where a conspiracy is entered into for an illegal purpose, but also where it is to effect a legal purpose by the use of unlawful means, and this, although such purpose be not effected": Hazen v. Commonwealth, 23 Pa. St. 354, 363. So an indictment may be brought for conspiracy to procure criminal process for improper purposes against the officer who executes the same, the prosecutor, and all others concerned in the matter: Slomer v. People, 25 Ill. 70; 76 Am. Dec. 786. But so long as the design rests merely in intention, it is not indictable: 4 Lawson's Criminal Defenses, ed. 1887, p. 616, sec. 217.

CONSPIRACIES TO COMMIT CRIMES OR MISDEMEANORS, OR TO INDUCE OTIIERS TO COMMIT THEM: See note 51 Am. Dec. 90, for discussion of these points in extenso.

CONCURRENCE OF Several MEMBERS. - Common design is necessary, since, in the absence of proof of a common design, there can be no conviction for the act of mere associate: State v. Trice, 88 N. C. 627. But it is a conspiracy, and punishable by law, for several persons to persuade a maiden lady, her father and mother, that a forged license is genuine, and that one of their number is a justice of the peace, and thus gain the consent of such father, mother, and daughter to the marriage of the latter: State v. Murphy, 6 Ala. 765; 41 Am. Dec. 79.

INFLUENCE UPON SOCIETY OF THE ACT DONE A DETERMINING FACTOR IN THE CRIME. — The influence which the act, if done, would have upon society determines whether it is a criminal conspiracy to combine to accomplish such act. The inquiry is not confined to the question whether the act itself might subject the offender to punishment, since criminal conspiracy may exist where the act contemplated is not itself criminally punishable: Smith v. People, 25 Ill. 17; 76 Am. Dec. 780.

PRIOR AGREEMENT. —A previous concert to effect the unlawful purpose is necessary, or there is no conspiracy: Regina v. Absolon, 1 Fost. & F. 498.

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There must be some agreement, a union or concert of two or more minds in a thing done or to be done, and the assent must be real, and not feigned: Woodworth v. State, 20 Tex. App. 375. Although two parties may coincide in intent, and yet neither combine or confederate: State v. Nauert, 2 Mo. App. 295; and see 4 Lawson's Criminal Defenses, ed. 1887, p. 616, sec. 217. And the mere fact that two or more parties may have acted together in the commission of the offense is no evidence of a previous conspiracy. "It would be a doctrine fraught with mischievous results, if the mere proof of an actual commission of a criminal act by two or more parties was sufficient in itself to justify the conclusion that a conspiracy had been formed a week or a month before": Loggins v. State, 8 Tex. App. 434, 442.

ACTUAL AGREEMENT NOT REQUIRED. — AGREEMENT MAY BE EITHER ExPRESS OR IMPLIED. Although a previous concert is essential, and some agreement is required, yet it is not necessary to show a coming together of the defendants, and that they actually agreed upon a common purpose, and the manner of carrying it out. It is only requisite to prove that their acts were done with a view to accomplish the same purpose, and that frequently the same means were employed, part being done by one person and part by another for the purpose of completing the purpose intended so as to effect the same result. This being shown, a jury will be warranted in the conclus sion that there was a conspiracy to attain that result: The Mussell Slough Cast (United States v. Doyle), 6 Saw. 612, 618; United States v. Rindskopf, 6 Biss. 259. Nor need the agreement be between all the parties to do the unlawful act. It is sufficient if they all had the same illegal purpose the same common design-in view, and that each acted a certain part, which might accom.. plish, or tend to its accomplishment: Id. This doctrine is well stated in the case of United States v. Babcock, 3 Dill. 582, 585. The court there says: "It is not necessary, to constitute a conspiracy, that two or more persons should meet together and enter into an explicit or formal agreement for an unlawful scheme, or that they should directly, by words or in writing, state what the the unlawful scheme was to be, and the details of the plan or means by which the unlawful combination was to be made effective. It is sufficient if two or more persons, in any manner or through any contrivance, positively or tacitly come to a mutual understanding to accomplish a common and unlaw ful design." And see United States v. Goldberg, 7 Biss. 175; Lawson's Criminal Defenses, ed. 1887, 565.

Sufficiency of Evidence in Such Cases. - If several persons take several steps, all tending towards one obvious purpose, it is for the jury to say whether those persons had not combined together to bring about that end which their conduct so obviously appears adapted to effectuate: Regina v. Duffield, 5 Cox C. C. 404.

MUST BE MORE THAN ONE PARTY ACTIVE PARTICIPATION OF SOME KIND NECESSARY. "To authorize a conviction for conspiracy, there must be proved to have been more than one person guilty, and it needs something more than proof of mere passive cognizance of fraudulent or illegal action of others to sustain conspiracy. There must be something showing active participation of some kind by the parties charged": 2 Wharton's Crim. Law, 7th ed., secs. 23, 55, cited in Evans v. People, 90 Ill. 384; 4 Lawson's Criminal Defenses, 524, 529. So a husband and wife alone cannot commit a conspiracy: 3 Lawson's Criminal Defenses, cd. 1887, 86; Commonwealth v. Woods, 7 Boston Law Rep. 58.

PARTY MAY BE GUILTY THOUGH NOT IN AT INCEPTION. The time when one entered into a conspiracy does not make any difference as to his re

sponsibility for acts done to carry out the common purpose: Avery v. State, 10 Tex. Ct. App. Crim. Cas. 199, 212; United States v. Babcock, 3 Dill. 586; Cox v. State, 8 Tex. App. 254, 300; United States v. Sacia, 2 Fed. Rep. 754. The rule being that a new party to a previously formed conspiracy becomes a fellow-conspirator from the moment he agrees to become a party to the unlawful transaction, or does any act in furtherance of the original design: People v. Mather, 4 Wend. 229; 21 Am. Dec. 122; and this rule has been held to apply to all acts perpetrated as well before as afterwards: United States v. Sacia, 2 Fed. Rep. 754; Cox v. State, 8 Tex. App. 254, 300; and this was declared in the last case to be so whether the parties be indicted and tried separately or jointly. But in State v. Duncan, 64 Mo. 266, it was decided that the mere fact that a party joins a band of persons for an unlawful purpose, such as horse-stealing, does not render him liable for acts done by the others prior to his becoming a member, it not appearing that he received any part of the stolen property or its proceeds: State v. Duncan, 64 Mo. 266; and see 4 Lawson's Criminal Defenses, ed. 1887, p. 616, sec. 218.

Same Conspiracy although New Parties are Added.— The addition of new parties after a conspiracy is formed does not necessarily destroy the identity of the conspiracy, but it continues as the same conspiracy: United States v. Nunnemacher, 7 Biss. 111.

NOT ACTUALLY PRESENT AT CONSUMMATION - CONSTRUCTIVE PRESENCE. Although the rule is, that if the accused was present and committed the crime with his own hands, or abetted and aided another in its consummation, he is deemed to expressly assent thereto (Lamb v. People, 96 Ill. 73, 82), yet the presence necessary to constitute one a principal in a felony may be constructive, as where he acts with another in pursuance of a common design, and is so situated as to be able to render aid to his confederates with a view to insure the success of the common purpose: McCarney v. People, 83 N. Y. 408.

WHETHER MEANS USED MUST EFFECT INTENDED DESIGN. In a charge for conspiracy to cheat and defraud, the offense is not complete, although there may have been an intention to defraud, if the means used could not possibly have that effect: March v. People, 7 Barb. 391; 4 Lawson's Criminal Defenses, ed. 1887, 530.

SPECIFIC MALICE - ORIGINAL DESIGN NOT CARRIED OUT - GUILT OF ONE, GUILT OF ALL-RESULT DIFFERENT FROM THAT INTENDED - CONSTRUCTIVE GUILT. -- The rule is, that each conspirator "is responsible for everything done by his confederates which follows incidentally in the execution of the common design as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan. In other words, the act must be the ordinary and probable effect of the wrongful act specifically agreed on, so that the connection between them may be reasonably apparent, and not a fresh and independent product of the mind of one of the confederates outside of or foreign to the common design": Bowers v. State, 24 Tex. App. 542, 550; State v. Myers, 19 Iowa, 517; Cox v. State, 8 Tex. App. 254; United States v. Doyle, 6 Saw. 612; Phillips v. State, 6 Tex. App. 364; United States v. Butler, 1 Hughes, 457; United States v. Nunnemacher, 7 Biss. 111; Hanna v. People, 86 Ill. 243; Stevenson v. State, 17 Tex. App. 618; Miller v. State, 25 Wis. 384; Breese v. State, 12 Ohio St. 146; 80 Am. Dec. 340; Moody v. State, 6 Cold. 299; Williams v. State, 47 Ind. 568; People v. Woody, 45 Cal. 289; Williams v. People, 54 Ill. 478; Regina v. Howell, 9 Car. & P. 437; Commonwealth v. Campbell, 7 Allen, 541; Green v. State, 13 Mo. 382; Tompkins v. State, 17 Ga. 356; State

v. Larkin, 49 N. H. 39; Heine v. Commonwealth, 91 Pa. St. 148; and see 4 Lawson's Criminal Defenses, ed. 1887, p. 616, sec. 218.

The principle which makes the acts and declarations of one those of all is, that, by the conspiring together, the parties so confederating jointly assume to themselves the attribute of individuality, so far as the prosecution of the common design is concerned, the principle of identity being the same as that which governs in case of an agent's acts or admissions against his principal: Ford v. State, 112 Ind. 373, 382. Therefore a person may be guilty of murder, although he neither took part in the killing, nor assented to any arrangement having for its object the death of the person killed; as, where several parties conspire together to do an unlawful act in pursuance of the common purpose and design, and death results to another, all are equally guilty: Brennan v. People, 15 Ill. 511, 516. So "if two or more persons conspire together to do an unlawful act, and in the prosecution of the design an individual is killed or death ensue, it is murder in all who enter into or take part in the execution of the design. If the unlawful act be a felony, or be more than a mere trespass, it will be murder in all, although the death happened collaterally or beside the original design: State v. Shelledy, 8 Iowa, 477, 505. And in case of such confederacy to do an unlawful act, if one of the conspirators commits the attempt in pursuance of the original purpose, and the other aids and abets him, although the latter does no positive act, all are guilty; as, where two persons combine to steal, and one only perpetrates the act, the other merely abetting and aiding, both are guilty: State v. Wilson, 30 Conn. 500. So if several persons conspire to invade a man's household, and go there armed with deadly weapons for the purpose of attacking and beating him, and in furtherance of this common design one of them gets into difficulty with him and kills him, the others being present or near at hand, the latter are guilty of murder, although they did not intend to kill: Williams v. State, 81 Ala. 1; 60 Am. Rep. 133. So where the intent of the conspirators is to do an unlawful act, as to beat or rob another, and it happens that in pursuance of the common design that other is killed, all are guilty, — the act of one of them, done in furtherance of the common design, is the act of all. It does not lessen the guilt of any one of the conspirators, under such circumstances, that he took no part in the killing, nor assented to any arrangement to compass the death of another: Brennan v. People, supra. And it is held that all are principals who are present at the commission of a crime, as in case of murder, although only one committed the crime, provided it is proven that such killing was done in furtherance of a common design, and is the result of a confederacy for that purpose: Green v. State, 13 Mo. 382. So if one is present aiding and abetting in the purpose for which he and others were there, and the felony committed was in pursuance of or an incidental probable consequence of such purpose, he is guilty: Weston v. Commonwealth, 111 Pa. St. 251. In Frank v. State, 27 Ala., N. S., 37, 43, this doctrine is seemingly not applied to the full extent that the above cases would indicate, being there limited to cases where the object of the conspiracy is an act malum in se. And so in Regina v. Skeet, 4 Fost. & F. 931, it is held that where persons are engaged in a common purpose, in the course of carrying out which an act of homicide occurs, the doctrine of constructive guilt, regarding those not actually present at or parties to the crime perpetrated, only applies where the common purpose is felonious, not where it is merely unlawful, as in case of a misdemeanor, unless it appears that there was a common intent to effect the purpose contemplated at all hazards. A similar rule is given in Lamb v. People, 96 Ill. 73, 84, where it is said that if "the unlawful act agreed to be

done is not of a dangerous or homicidal character, and its accomplishment does not necessarily or probably require the use of force or violence, which may result in the taking of life unlawfully, no such criminal liability will attach merely from having been a party to such an agreement." But the responsibility only attaches to the actual perpetrators, however, when an offense is committed by one or more of them from causes unconnected with the common object, and the question is for the jury whether the act done was in furtherance of the common purpose, or independent of it, and without any previous concert: Frank v. State, supra. So where parties conspired together to commit an offense, and while engaged in the perpetration of the original wrong, attempted to escape, and some other parties, without the knowledge or consent of the defendant, committed homicide, it was held that he was not responsible, since "there can be no criminal responsibility for anything not fairly within the common enterprise, and which might be expected to happen if occasion should arise for any one to do it. In other words, the principle is quite analogous to that of agency, where the liability is measured by the express or implied authority. And the authorities are quite clear and reasonable which deny any liability for acts done in escaping, which were not within any joint purpose or combination ": People v. Knapp, 26 Mich. 112, 115. And where several persons attack another, and leave him senseless on the ground, and one of them returns and steals his money, he only can be convicted of robbery, since such act was not done in furtherance of the common design: Rex v. Hawkins, 3 Car. & P. 392. So persons who attend one on a lawful expedition, during which he alone commits a crime, are liable therefor only on proof of a conspiracy, or of their intention to aid him in doing any unlawful act he might do: Hairston v. State, 54 Miss. 689; 28 Am. Rep. 392. Again, if A and B, in furtherance of a prearranged plan, attack C, and D, without being privy to the common design, enters into the fight, and C dies from the wounds inflicted by A and B in the assault, D is not guilty of murder: Frank v. State, supra.

NO PARTICULAR OR WELL-DEFINED PURPOSE IN VIEW. Where parties combine together for a general unlawful purpose, as to resist all opposers in the commission of any breach of the peace," and for that purpose assemble together and arm themselves, thus intending to resist the lawfully constituted authorities of the country, they are all answerable for anything done in the execution of it, and it is no defense that the parties had no well-defined or particular mischief in view as the result of their combination: Regina v. Tyler, 8 Car. & P. 616.

PARTIES ARE PRESUMED TO HAVE UNDERSTOOD THE CONSEQUENCES REASONABLY EXPECTED TO RESULT FROM THE CONSPIRACY.-The words of the court, in People v. Brown, 59 Cal. 345, are in point. It is there said that "where men confederate together to commit crimes of a nature, or under such circumstances, as will, when tested by human experience, probably result in taking human life, if such necessity should arise to thwart them in the execution of their unlawful plans, it must be presumed that they all understand the consequences which might reasonably be expected to flow from carrying into effect their unlawful combination, and to have assented to taking buman life, if necessary to accomplish the objects of the conspiracy." But the law goes no further upon the doctrine of implied assent: Brennan v. People, 96 Ill. 73, 82.

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KNOWLEDGE BY A MEMBER OF THE PART TO BE PERFORMED BY HIM. It if not necessary that any but the leading conspirator had knowledge of the exact part another was to perform: United States v. Rindskopf, 6 Biss. 259.