Co-conspirators are liable for each | VII. VERDICT. other's acts, 1405.

Declarations of co-conspirators admissible against each other, 1406.

Verdict acquitting all but one

defendant acquits all, ? 1407.

POINTS FOR DEFENCE IMPROPERLY
REFUSED, AND ERRONEOUS
CHARGES. (See end of chapter.)

I. GENERAL CONSIDERATIONS.

§1337. A conspiracy is a confederation to effect an unlawful object by lawful means, or by unlawful means a lawful object; and is a misdemeanor at common law.

It is on all sides conceded that combinations of two or more persons may become indictable when directed to the accomplishment either of an illegal object, or of an indifferent object by illegal means. The conflict begins when we reach those combinations which are assumed to be indictable, not as aimed at an indictable offence, but

Not essential to formation of conspiracy that there should be a formal agreement between the parties. McKee . State, 111 Ind. 378, 1887.

Conspiracies are indictable when di

rected to plishment of illegal object or

accom

use of illegal means.

1 See infra, 1359; supra, 1118; by perjured evidence. Here the proxiand see Com. v. Bliss, 12 Phila. 580, mate or immediate intention of the 1877; U. S. v. Frisbie, 28 Fed. Rep. parties being to commit a crime, the 808, 1886; U. S. v. Johnson, 26 Ibid. conspiracy is to do something crimi682, 1885; Connor v. People, 18 Colo. nal; and here again the case is conse373, 1893; U. S. v. Wotten, 29 Fed. quently free from difficulty. The Rep. 702, 1887; Com. v. Work, 43 third and last case is where with a Leg. Int. (Pa.) 57, 1886; U. S. v. malicious design to do an injury the Lancaster, 44 Fed. Rep. 896, 1891; purpose is to effect a wrong, though Com. v. Myers, 146 Pa. 24, 1892. not such a wrong as, when perpetrated by a single individual, would amount to an offence under a criminal law. Thus an attempt to destroy a man's credit, and effect his ruin by spreading reports of his insolvency, would be a wrongful act, which would entitle the party whose credit was thus attacked to bring an action for a civil wrong, but it would not be an indictable offence. The law has wisely and justly established that a combination of persons to commit a wrongful act with a view to injure another shall be an offence, though the act, if done by one, would amount to no more than a civil wrong."

2 Sir J. F. Stephen's definition (Dig. Crim. Law, art. 36) is given infra, ? 1347.

The late Chief Justice Cockburn proposed the following to the commissioners of the Criminal Code:

"Conspiracy may be divided into three classes. First, where the end to be accomplished would be a crime in each of the conspiring parties, a class which offers no difficulty. Secondly, where the purpose of the conspiracy is lawful, but the means to be resorted to are criminal, as when the conspiracy is to support a cause believed to be just VOL. II.-12

By sec. 284 of the English Draft Code of 1879, declared by the reporters to be a compilation in this respect of 177

from the idea that the policy of the law forbids the reaching of the attempted object by a confederacy. We propose, therefore, instead of further defining the offence, first, to scrutinize the cases which have been considered as belonging to it; and secondly, to notice such general points of pleading and evidence as relate to them all jointly. Before proceeding, however, to this analysis, certain general qualifications are to be noticed.

Offence to

to such

cases.

§ 1338. We may now regard it as settled that it is an indictable offence for two persons to conspire to defraud a third by be limited false statements for which one calls on the other in any way to vouch, this concert, as well as the falsehood, being concealed from the party defrauded; nor is it any defence in such cases that there is no statute under which, if the conspiracy charge were thrown out, the defendants could be convicted. Cheating by reciprocal preconcerted false personations of this class may justly be regarded as a cheat at common law; and the rulings making it indictable are sustainable on principle. But to extend indictable conspiracies so as to include cases where acts not in themselves indictable are attempted by concert, involving neither false statement nor concerted force, should be resolutely opposed. A distressing uncertainty will oppress the law if the mere fact of concert in doing an indifferent act be held to make such act criminal. We all know what offences are indictable, and if we do not, the knowledge is readily obtained. Such offences, when not defined by statute, are limited by definitions which long processes of judicial interpretation have hardened into shapes which are distinct, solid, notorious, and permanent. It is otherwise, however,

the common law, "every one shall be guilty of an indictable offence, and shall be liable, upon conviction thereof, to five years' penal servitude, who conspires with any other person, by deceit or falsehood or other fraudulent means, to defraud the public, or to affect the public market price of stocks, funds, shares, or merchandise, or anything else publicly sold, or who conspires by deceit and falsehood or other means to defraud any person, ascertained or unascertained, whether such deceit or falsehood or other fraudulent means would or would not

2

when we come to speak of acts which, though not penal when they are committed by persons acting singly, are supposed to become so when brought about by concert which involves neither fraud nor force. These there has never been any judicial attempt to define, or legislative attempt to codify.' No man can know in advance whether any enterprise in which he may engage may not in this way become subject to prosecution. It is essential to the constitution of an indictable offence, as is elsewhere shown, that it should be prohibited either by statute or by common law; but conspiracies to commit by non-indictable means non-indictable offences, if we resolve them into their elements, are neither prohibited by common law nor by statute. By force of their definition, their object is not per se prohibited; and the other ingredient in their constitution, that of an association of individuals to effect a common end, is essential to all action in which two persons engage. When we remember, also, that, as we have seen, it is necessary to a righteous administration of public justice that punishment should be attached only to acts which are made penal by rules which are pre-announced and constant, the objection just stated acquires additional weight. An act of business enterprise in purchasing goods in a cheap market for the purpose of selling them in a dear market, which in one phase of judicial sentiment would be regarded as a meritorious impetus to commercial activity, would be in another phase. of judicial sentiment, as it once has been, treated as an indictable offence. Legislative and judicial compromises, which one court may view as essential to the working of the political machine, another court may hold to be indictable as a corrupt conspiracy.5 Nor can we continue to accept the reasons by which this indefinite extension of conspiracy has been justified. It used to be said that the combination of a plurality of persons to do an act invests it with a criminality which it does not otherwise possess. Undoubtedly this is so with riot, which depends on tumult, which again depends on plurality of agents; but riot is positively defined by the law, and all who engage in a riot have means to know what it is, and that it is punishable. But can this be predicated of combinations which the law does not in advance pronounce to be unlawful? One of two alternatives we must here accept. Either we must, with the

old English judges, look upon all voluntary combinations as suspicious, and objects of judicial suppression, or we must declare that only such combinations are penally cognizable as are made so either by statute or by a settled judicial construction of the common law. We must, in other words, either on the one hand say that voluntary combination has in it an element of evil which infects with indictability acts not in themselves indictable, or we must hold that voluntary combination is indictable or not, just as the conduct it involves is indictable or not. Now, whatever may have been the view in old times, when the maxim was that voluntary combinations should do nothing that government could do, the first of these hypotheses must be rejected in an age in which the maxim is that government, so far as concerns affairs of trade, should do nothing that voluntary combinations can do as well, and in which great social and commercial enterprises can no longer be undertaken by individuals, but must be undertaken by combinations. So cogent have these and other reasons appeared to the jurists of countries whose notions of the freedom of the individual we are apt to regard as less comprehensive than our own, that conspiracy (Komplott), as a distinct offence, has been stricken from the revised codes of Prussia, Oldenburg, Würtemberg, Bavaria, Austria, and North Germany. Nor can it be justly said that by this change of the law the courts lose the power to punish offences in their inception. Such was no doubt the case before the law of attempts assumed its present comprehensiveness. Since, however, whatever crime is punishable in consummation is now punishable in attempt, the argument drawn from necessity fails. The conclusion is that on reason the offence of conspiracy at common law is limited to (1) confederacies to effect illegal objects as ends or means; (2) confederacies to pervert public justice, or injuriously affect the body politic; and (3) confederacies which, from the mode of their operations, exhibit the

Berner, a very high authority, (Strafrecht, etc., 1871, 113), says: "The common (German) law doctrine developed the idea of conspiracy to a perilous practical extent; and it has consequently been omitted in our later codes. As illustrating the mischief which this idea has wrought, see the cases in Temme, Archiv. i. pp.260-6; ii. 72, 100, 126.”

2 See supra, 173 et seq.

3 See U. S. v. Goldberg, 7 Biss. 175, 1876; U. S. v. Nunnemacher, Ibid. 111, 1876; U. S. v. Mitchell, 1 Hughes, 439, 1871; The Mussel Slough Case, 5 Fed. Rep. 680; 6 Sawy. 612, 1880; McHenry v. Sneer, 56 Iowa, 649, 1881; and see infra, ? 1400. That when an offence is consummated, the indictment should be for the consummated offence, see infra, 1346.