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is held to be sufficient to enable the jury to infer concurrence of sentiment; and one competent witness will suffice to prove the cooperation of any individual conspirator. If, therefore, it appear that two or more persons, acting in concert, are apparently pursuing the same object, often by the same means, one performing part of an act, and the other completing it, for the attainment of the object, the jury may draw the conclusion that there is a conspiracy.? § 1399. All who join a conspiracy at any time after its formation
become conspirators; and, as will be seen, the prosecutor Complicity in prior
may go into general evidence of the conspiracy, before he stages un- gives evidence to connect the defendants with it. It is
not necessary, therefore, to show a complicity of the de
1 R. v. Cope, 1 Stra. 144; Com. v. that they have been the results not Crowninshield, 10 Pick. 497, 1830. merely of individual, but the products
2 R. v. Murphy, 8 C. & P. 297 ; Com. of concerted and associated action, v. Warren, 6 Mass. 72, 1809.
which, if considered separately, might “In prosecutions for criminal con- seem to proceed exclusively from the spiracies," says Judge King, “the immediate agents to them; but which proof of the combination charged may be so linked together by circummust almost always be extracted from stances, in themselves slight, as to the circumstances connected with the leave the mind fully satisfied that transaction which forms the subject these apparently isolated acts are of the accusation. In the history of truly parts of a common whole; that criminal administration the case is they have sprung from a common rarely found in which direct and posi- object, and have in view a common tive evidence of criminal combination end. The adequacy of the evidence in exists. To hold that nothing short of prosecutions for a criminal conspiracy such proof is sufficient to establish a to prove the existence of such a conconspiracy would be to give immunity spiracy, like other questions of the to one of the most dangerous crimes weight of evidence, is a question for which infest society. Hence, in order the jury." Com. v. M'Clean, 2 Pars. to discover conspirators, we are forced 367, 1850. See, to same effect, R. v. to follow them through all the devious Parsons, 1 W. Bl. 392; R. v. Murphey, windings in which the natural anxiety 8 C. & P. 297 ; R. v. Deasy, 15 Cox C. of avoiding detection teaches men so C. 334; U. S. v. Goldberg, 7 Biss. 175, circumstanced to envelop themselves, 1876; Street v. State, 43 Miss. 1, 1870; and to trace their movements from the State v. Sterling, 34 Iowa, 443, 1872; slight, but often unerring, marks of Tucker v. Finch, 66 Wis. 17, 1886. progress which the most adroit cun- 3 Supra, 1341 a; People v. Mather, ning cannot so effectively obliterate 4 Wend. 229, 1830; Den v. Johnson, 3 as to render them unappreciable to Har. (N. J.) 87, 1840 ; State v. Trexthe eye of the sagacious investigator. ler, 2 Car. L. Rep. 90, 1815. See R. It is from the circumstances attending v. McMahon, 26 Up. Can. (Q. B.) 195. a criminal, or a series of criminal acts, • Infra, & 1401; R. v. Hammond, 2 that we are able to become satisfied Esp. 718.
fendants in the preliminary stages of the offence. Thus, on an indictment for a conspiracy to defraud by false representation of solvency, it was held by Lord Campbell that defendants may be convicted who had no knowledge of the transactions which resulted in insolvency, provided they were aware of the result, and concurred in the representations in furtherance of the common design, even though they did so with no motive of particular benefit to themselves." Nor does the entrance of new parties affect the identity of a conspiracy.
§ 1400. The offence of conspiracy, so it is said, is rendered complete by the bare engagement and association of two or more persons to break the law, without an overt act com- act necespleted by the conspirators ;; but this must be construed to mean a conspiracy evidenced in facts, since it is impossible to see how a conspiracy can be proved except by adducing facts which are more or less overt acts. A word or a sign is as much an overt act as a battle, yet no conspiracy can be proved without proving words or signs. But in any view the active consent of two or more is essential.
If any overt act be proved in the county where the venue is laid, other overt acts, either of the same or others of the conspirators, may be given in evidence, although committed in other counties."
If any overt act is introduced as descriptive of the offence and as limiting the conspiracy charge, a variance in the statement of the act is fatal. It is otherwise when the conspiracy charge is com
* R. v. Esdaile, 1 F. & F. 213; 8. C. Com. v. Bryant, (Ky.) 12 S. W. Rep. nom. R. v. Brown, 7 Cox C. C. 442. 276, 1889; State v. Cawood, 2 Stew.
? U. S. v, Nunnemacher, 7 Biss. 111, 360, 1832; Alderman v. People, 4 1876.
Mich. 414, 1857; State v. Pulle, 12 Supra, 81338, 1382; O'Connell v. Minn. 164, 1866 ; Isaacs v. State, 48 R., 11 Cl. & Fin. 155; 9 Jur. 25; State Miss. 234, 1873. That there must be o. Straw, 42 N. H. 393, 1861; Resp. v. an embodiment in acts, see supra, Ross, 2 Yeates, (Pa.) 1, 1795 ; Collins & 1338; U. S. v. Goldberg, 7 Biss. 175, v. Com., 3 S. & R. (Pa.) 220, 1817; 1876. Com. v. McKisson, 8 Ibid. 420, 1822; Supra, & 1341 a, and cases there State v. Young, 37 N. J. L. 184, 1874; cited; Mulcahy v. R., L. R. 3 H. L. Bloomer v. State, 48 Md. 521, 1878; 306. Supra, % 1388. A formal agreeState r. Buchanan, 5 Har. & John, ment between the parties need not (Md.) 317, 1821 ; Landringham v. exist. McKee v. State, 111 Ind. 378, State, 49 Ind. 186, 1874; State v. 1887. Bruner, 135 Ibid. 419, 1893 ; Medley • R. v. Bowes, cited 4 East, 171. See v. People, 49 Ill. App. 218, 1892 ; Ter- supra, 287 et seq., 1397. ritory v. Carland, 6 Mont. 14, 1886; * Infra, & 1403.
at discretion of court.
plete in itself, in which case the overt act may be treated as surplusage." In some jurisdictions, as has been seen, overt acts are essential to the offence.? $ 1401. It was considered in the Queen's case, that on a prosecu
tion for a crime to be proved by conspiracy, general eviOrder of evidence dence of an existing conspiracy may in the first instance
be received, as a preliminary step to that more particular
evidence by which it is to be shown that the individual defendants were guilty participators in such conspiracy; and that this is often necessary to render the particular evidence intelligible, and to show the true meaning and character of the acts of individual defendants. In such cases the general nature of the whole evidence intended to be adduced should be opened to the court; and if upon such opening it should appear manifest that subsequently no particular proof sufficient to affect the individual defendants is intended to be adduced, it would become the duty of the judge to stop the case in limine, and not to allow the general evidence to be received, which, even if attended with no other bad effect, such as exciting an unreasonable prejudice, would certainly be a useless waste of time. But ordinarily it is only necessary to prove the acts of particular defendants, leaving the question of conspiracy to be determined by inference.*
Supra, & 1382.
defendants, but leaving that part of Supra, 22 1356 a, 1384.
the case to be subsequently proved. Queen's Case, 2 Brod. & Bing. 284. The rule laid down by Mr. East is as Supra, & 1399. Hall v. State, 31 Fla. follows: "The conspiracy or agree176, 1893; Cortez v. State, 24 Tex. ment among several to act in concert App. 511, 1887 ; State v. Banks, 40 La. for a particular end must be estabAn. 736, 1888; People v. Brickner, lished by proof, before any evidence 15 N. Y. Sup. 528, 1891.
can be given of the acts of any person + R. v. Brittain, 3 Cox C. C. 76; R. not in the presence of the prisoner; v. Blake, 6 Q. B. 126; Bloomer v. and this must, generally speaking, be State, 48 Md. 521, 1878; Long v. done by evidence of the party's own State, 23 Tex. App. 692, 1887. act, and cannot be collected from the
The authorities are thus noticed by acts of others, independent of his own, Sir J. F. Stephen, Roscoe Crim. Ev. as by express evidence of the fact of a 414:
previous conspiracy together, or of a "It is a question of some difficulty concurrent knowledge and approbahow far it is competent for the prose- tion of each other's acts.' 1 East P. cutor to show, in the first instance, the C. 96. But it is observed by Mr. existence of a conspiracy amongst Starkie that in some peculiar instances other persons than the defendants, in which it would be difficult to estabwithout showing, at the same time, lish the defendant's privity without the knowledge or concurrence of the first proving the existence of a con
§ 1402. But it needs something more than a proof of mere passive cognizance of fraudulent or illegal action of others to sus- Mere cogtain conspiracy. There must be shown some sort of bizancient active participation by the parties charged. Of this we
conspirhave an illustration in an English trial before Martin, B., acy. where certain wharfingers and their servants were indicted for a conspiracy to defraud by false statements as to goods deposited with them and insured by the owners against fire. It was held that evidence that false statements were knowingly sent in by the servants, which would be for the benefit of the masters, and that afterward the servants took fraudulent means to conceal the falsehood of the statements, with evidence that the employers had the means of knowing the falsehood and knew of the devices used to conceal it, was not sufficient to sustain the charge of a fraudulent conspiracy between the employers and servants. There must be a concurrence in the common design. And we may also hold that
spiracy, a deviation has been made he may prove the acts of the different
Barry, 4 F. & F. 389. prosecutor may either prove the con- 4 R. v. Boulton, 12 Cox C. C. 87. spiracy which renders the acts of the Least degree of consent sufficient. conspirators admissible in evidence, or State v. Andena, 92 N. C. 732, 1885.
3 R. v.
mere sympathy with a conspiracy not exhibiting itself in overt acts does not make a person a co-conspirator.'
§ 1403. Any material variance as to the means used is fatal.? Thus an indictment for a conspiracy, charging the object of the con
spiracy to be to cheat and defraud the citizens at large,
or particular individuals, out of their land entries, is not to means, supported by evidence that the defendants conspired to
make entries in the land office before it was opened, or before it was declared to be opened, or after it was opened, for the purpose of appropriating lands to their own use and excluding others.3 Variance as to time is immaterial.
Material variance as
Supra, & 211 d; State v. Cox, 65 at another time, when engaging lodgMo. 29, 1877; Connoughty v. State, ings, that they were not in the habit 1 Wis. 159, 1853; People v. Leith, 52 of living in lodgings, and that they Cal. 251, 1877.
obtained various goods from trades· R. v. Whitehouse, 6 Cox C. C. 38. men on credit, under circumstances See R. v. Barry, 4 F. & F. 389; R. v. that showed an intent to defraud, but Banks, 12 Cox C. C. 392; Com. v. no proof being adduced that those Harley, 7 Metc. (Mass.) 506, 1844; goods were obtained by reason of any Com. v. Kellogg, 7 Cush. 473, 1851. of those general statements. It was
In R. v. Whitehouse, supra, the in- further ruled that a count charging dictment alleged that I. W., C. W., the defendants with conspiring, by and J. W., being persons in indigent divers subtle means and false precircumstances, and intending to de- tences, to obtain goods and chattels fraud tradesmen who should supply from a tradesman, without paying for them with goods upon credit, con- them, with intent to defraud him spired to cause J. W. to be reputed thereof, is supported by proof of overt and believed to be a person of con- acts from which a conspiracy may be siderable property and in opulent cir- inferred, without proof of any such cumstances, for the purpose and with false pretence as is required in an inthe intent of cheating and defrauding dictment for obtaining goods by false divers persons, being tradesmen, who pretences. Ibid. should bargain with them for the sale 3 State v. Trammel, 2 Ired. 379, to J. W. of goods, the property of such 1842. Supra, & 1396. last-mentioned persons, of great quan- An averment, in an indictment for tities of such goods, without paying conspiracy, that the defendants confor the same, with intent to obtain to spired to defraud A., is not supported themselves money and other profits. by proof that they conspired to deThis, it was held, was not supported fraud the public generally, or any inby proof that C. W. and J. W., being dividual whom they might be able to the wife and daughter of I. W., rep- defraud. Com. v. Harley, 7 Metc. resented that they were in indepen- 506, 1844. Supra, 8 1396. dent circumstances, their income being We have already seen that in cases interest of money received monthly; of this class it is sufficient to prove
4 U. S. v. Graff, 14 Blatch. 381, 1878; Whart. Crim. Ev. 88 91 et seq.