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§ 1404. Whether in an indictment for a conspiracy to commit a wrong, evidence of an attempt about the same time, by the same defendants, with the same or similar means, to System of conspiracy commit a similar wrong, has been elsewhere generally may be discussed. On the one hand, it is argued that such evidence is proper to show the conspiracy; on the other, that it should be excluded as showing a distinct and substantive offence. On an indictment tried before Lord Ellenborough, at nisi prius, charging that the defendants, being persons of evil fame, and in low and indigent circumstances, conspired together to cause themselves to be reputed persons of considerable property, and in opulent circumstances, for the purpose of defrauding one A. B., evidence being given of their having hired a house in a fashionable street, and represented themselves to one tradesman employed to furnish it as people of large fortune, a witness was called to show that at a different time they had made a similar representation to another tradesman. It was objected that the evidence formed a new offence; and that the prosecutor having elected in his indictment to press a particular charge, it was not just to enable him to spring another on the defendants without notice. The court, however, admitted the evidence, and the defendants were convicted.2

But in a later case, where the defendant was charged with conspiring with other persons unknown "to cheat and defraud J. D. and others," and the overt acts laid were, that the defendant did falsely pretend to J. D. that he was a merchant named G., and did, under color of pretended contract with J. D., for the purchase of

overt acts from which such a con- and at which one of the defendants spiracy could be inferred, without presided, the professed object of proof of any technical false pretence. which meeting was to fix the meeting R. v. Whitehouse, 6 Cox C. C. 38. mentioned in the indictment, are adSupra, 1364. missible to show the intention of such defendant in assembling and attending the meeting in question, at which he also presided.

1 Whart. Crim. Ev. 8 23 et seq. The question in such cases is whether the transaction proposed to be proved was part of a system with that under trial. Tarbox v. State, 38 Ohio St. 581, 1883.

It was further held that on proof of systematic co-operation between several bands of rioters, the riotous misIn R. v. Hunt, 3 B. & Ald. 566, it conduct of the members of one band was held that on an indictment for was admissible against the members conspiring and unlawfully meeting of another band. See Whart. Crim. for the purpose of exciting discontent Ev. 23 et seq. and disaffection, resolutions passed at a former meeting, in another place,

2 R. v. Roberts, 1 Camp. 399. See Resp. v. Hevice, 2 Yeates, 114, 1796.

certain goods of " the said J. D. and others," obtain a large quantity of the goods "of the said J. D. and others," with intent to defraud "the said J. D. and others," it was held by the judges that the words "and others," throughout this indictment, must be taken to mean the other partners of J. D., and not other persons wholly unconnected with J. D., and that, on the trial of the indictment, evidence was not admissible to show that the defendant attempted to defraud other persons wholly unconnected with J. D.1

Co-con

§ 1405. Each co-conspirator is liable for the overt acts of his confederates, committed in pursuance of the conspiracy, spirators during its continuance; and it has been shown that each is liable in the place of an overt act.3

are liable for each other's

acts.

Declara

tions of coconspira

§ 1406. The declarations of one conspirator, in furtherance of the common design, are admissible against his co-conspirators, though such declarations cannot be retors admis- ceived if made after the termination of the conspiracy, nor are they admissible to prove the conspiracy. A party acting as a decoy cannot be regarded as a co-con

sible

against

each other.

1 R. v. Steel, C. & M. 337. See Miss. 268, 1883; State v. Jackson, 29 supra, & 1396. La. An. 354, 1877; Williams v. State, 81 Ala. 1, 1887; People v. Majors, 1 W. Coast Rep. (Cal.) 859; Oliver v. Com., 77 Va. 590, 1883; State v. Anderson, 92 N. C. 732, 1885; Hall v. State, 31 Fla. 176, 1893; Carr v. State, 43 Ark. 99, 1884; Peden v. State, 61 Miss. 268, 1883; Turner v. State, 97 Ala. 57, 1892; U. S. v. Lancaster, 44 Fed. Rep. 896, 1891; Kirby v. State, 23 Tex. App. 13, 1887; Amos v. State, 83 Ala. 1, 1888; Williams v. State. (Ala.) 9 Crim. Law Mag. 480, 1887; Spies v. People, (Ill.) Ibid. 829, 1887. 3 Supra, 287, 1397. See Whart. Crim. Ev. ¿ 693.

On an indictment for a conspiracy in inveigling a young girl from her mother's house, and reciting the marriage ceremony between her and one of the defendants, a subsequent carrying her off, with force and threats, after she had been relieved on a habeas corpus, was allowed to be given in evidence. Resp. v. Hevice, 2 Yeates, 114. So where the defendants were charged with a conspiracy, in several counts, alleging several conspiracies of the same kind on the same day, the prosecutor was permitted to give evidence of several conspiracies on different days. R. v. Levy, 2 Stark. 458; but see R. v. Steel, C. & M. 337.

2 Supra, 213-247, 397; U. S. v. Donau, 11 Blatch, 168, 1873; U. S. v. Goldberg, 7 Biss. 175, 1876; Collins v. Com., 3 S. & R. 220, 1817; Brown v. Smith, 83 Ill. 291, 1876; Smith v. State, 52 Ala. 407, 1875; Jackson v. State, 54 Ibid. 234, 1875; Peden v. State, 61

Whart. Crim. Ev. 28 698 et seq., where the cases are given in detail. See, also, supra, ?? 213, 214. "It seems to make no difference as to the admissibility of this evidence, whether the other conspirators be indicted or not, or tried or not; for the making of them co-defendants would give no additional strength to their declarations

spirator, so as to make those with whom he acts responsible for what he does.1

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as against others. The principle upon Majors, (Cal.) 2 W. Coast Rep. 580, which they are admissible at all is, 1884; People v. Hampton, 7 Crim. that the acts and declarations are Law Mag. 479, 1886; State v. Ward, those of persons united in one com- Ibid. 748, 1886; U. S. v .Gunnell, 8 mon design; a principle wholly un- Ibid. 614, 1886; Long v. State, 13 affected by the consideration of their Tex. App. 211, 1882; Morris v. State, being jointly indicted. 2 Stark. Ev. Ibid. 65, 1882; People v. Aleck, 61 237 (2d ed.) supra, p. 89. Where an Cal. 137, 1882; People v. Collins, 64 indictment charged the defendant with Ibid. 293, 1883; Simmons v. State, 61 conspiring with Jones, who had been Miss. 243, 1883; U. S. v. Lancaster, 44 previously convicted of treason, to Fed. Rep. 896, 1891; Williams v. State, raise insurrections and riots, and it (Tex.) 5 S. W. Rep. 655, 1887; Clark v. was proved that the defendant had State, 12 Ibid. 729, 1889; Com. v. been a member of a chartist associa- O'Brien, 140 Pa. 555, 1891; State v. tion, and that Jones was also a mem- Johnson, 40 Kans. 266, 1888; Spies v. ber, and that in the evening of the People, 9 Crim. Law Mag. 829, 1887; 3d of November the defendant had People v. Parker, 67 Mich. 222, 1887 ; been at Jones's house, and was heard Baker v. State, 80 Wis. 416, 1891; to direct the people there assembled Logan v. U. S., 12 Sup. C. R. 617, 1892; to go to the race-course, where Jones People v. Kerr, 6 N. Y. Sup. 674, 1889 ; had gone on before with others; it State v. Brady, 107 N. C. 822, 1890; was held that a direction given by State v. McCahill, 72 Iowa, 111, 1887 ; Jones, in the forenoon of the same State v. Thaden, 43 Minn. 253, 1890; day, to certain parties to meet on the State v. Grant, 86 Iowa, 216, 1892. race-course, was admissible; and it being further proved that Jones and the persons assembled on the racecourse went thence to the New Inn; it was held that what Jones said at the New Inn was admissible, as it was all part of the transaction. R. v. Shellard, 9 C. & P. 277. The letters of one of the defendants to another have been, under certain circumstances, admitted as evidence for the former, with the view of showing that he was the dupe of the latter, and not a participator in the fraud. R. v. Whitehead, 1 Dow. & Ry. N. P. 61." Roscoe Crim. Ev. 418; Willey v. State, 22 Tex. App. 408, 1886; Gillum v. State, Declarations of a co-conspirator, 62 Miss. 547, 1885; O'Neal v. State, made pending the conspiracy, are ad14 Tex. App. 582, 1883; People v. missible against his co-conspirators,

But the conspiracy should first be established. Menges v. State, 25 Tex. App. 710, 1888; Martin v. State, 25 Tex. App. 557, 1888; State v. Banks, 40 La. An. 736, 1888.

A conviction cannot be had on uncorroborated testimony of a co-conspirator; nor can co-conspirators corroborate each other. U. S. v. Logan, 45 Fed. Rep. 872, 1891.

As to declarations of agent employed by conspirators, see State v. Grant, 86 Iowa, 216, 1892.

As to admissibility of notes of testimony taken at another trial, Com. v. Doughty, 139 Pa. 383, 1891.

1 Williams v. State, 55 Ga. 391, 1875.

quitting all but one

VII. VERDICT.

§ 1407. Two or more defendants must be joined to constitute the Verdict ac- offence; and if only two are joined, an acquittal of one is an acquittal of the other, unless there be allegation and proof of co-defendants unknown. Nor can a conviction. of one of two co-conspirators be sustained when the jury do not agree as to the other.2 A husband and wife can

defendant

is a general acquittal.

not be joined as the sole conspirators.3

though the latter may not have joined the three were guilty was a finding

conspiracy until after the declarations were made. Baker v. State, 80 Wis. 416, 1891.

they were guilty of conspiring with the other five to effect all the objects of the conspiracy, whereas by the same finding it appears that the other five were guilty of conspiring to effect only some of the objects. Ibid.

1 O'Connell v. R., 11 Cl. & F. 155; R. v. Thompson, 16 Q. B. 155; R. v. Manning, L. R. 12 Q. B. D. 241; 51 L. T. (N. S.) 121; and see Com. v. Edwards, 135 Pa. 474, 1890; Bradshaw v. Territory, 3 Wash. Ter. 265, 1887. 2 R. v. Manning, ut supra, modifying R. v. Cookes, 7 D. & R. 673; 5 B. & C. 538. Supra, 22 1337-9, 1392-3; Whart. conspired with either Y. or Z., but Cr. Pl. & Pr. 305.

3

Where a count in an indictment charged several defendants with conspiring together to do several illegal acts, and the jury found one of them guilty of conspiring with some of the defendants to do one of the acts, and guilty of conspiring with others of the defendants to do another of the acts, such finding was held bad, as amounting to a finding that one defendant was guilty of two conspiracies, though the count charged only one. O'Connell v. R., 11 Cl. & F. 155.

Upon a count in an indictment against eight defendants charging one conspiracy to effect certain objects, a finding that three of the defendants are guilty generally, that five of them are guilty of conspiring to effect some, and not guilty as to the residue, of these objects, is bad in law and repug

nant; inasmuch as the finding that

In a case already noticed (supra, 1393), A. was indicted for conspiring with Y. and Z., and other persons to the jurors unknown. The evidence was confined to A., Y., and Z., and the jury were of opinion that A.

said that they did not know with which. Y. and Z. were thereupon both acquitted. It was held that A. was entitled to be acquitted also. R. v. Thompson, 16 Q. B. 832; 5 Cox C. C. 166; R. v. Denton, Dears. C. C. 3.

As has been already seen, where one defendant in conspiracy dies between the indictment and trial, it is no ground of a venire de novo for a mistrial, if the trial proceeds against both, no suggestion of the death being entered on the record. R. v. Kenrick, 5 Q. B. 49; D. & M. 208; 7 Jur. 848; 12 L. J. M. C. 135.

One of several prisoners indicted for conspiracy may be tried separately, and upon conviction, judgment may be passed on him, although the others, who have appeared and pleaded, have not been tried. R. v. Ahearne, 6 Cox C. C. 6.

It has been held that where three

prisoners have been jointly indicted must follow, although the others have

for a conspiracy to murder, and severally pleaded not guilty, but have severed in their challenges, and the Crown has, consequently, proceeded to try one of such prisoners; upon the judgment) is not ground by itself conviction of such prisoner, judgment for reversal. Ibid.

not been tried; and that the possibility of the other prisoners being found not guilty (although such a verdict would be a ground for reversing

POINTS REQUESTED FOR THE DEFENCE IMPROPERLY
REFUSED, AND ERRONEOUS CHARGES.

Conspiracy to Sell Stock.

The defendant requested the court to charge: "The plaintiff alleges that there was a conspiracy entered into between the defendants to defraud the plaintiff's intestate by a sale to him of the stock in question. In order to establish such conspiracy, it is necessary for plaintiff to establish by a preponderance of evidence some agreement or understanding, before the transfer, between the defendants to make such sale; and unless you do find such conspiracy, representations made by one defendant could not be considered to establish a liability of the other defendant, and without such conspiracy the knowledge or intent of either defendant cannot be considered by the jury as affecting the liability of the other defendant." Refused. Held error. Redding v. Wright, 49 Minn. 322, 1892.

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Inference of Intent is for the Jury.

On the trial on an indictment for conspiracy to obtain a divorce, the court charged the jury in regard to the divorce proceedings as follows: "This judgment record is a record of a fraudulent divorce. Of this there can be no doubt whatever. . . . It is unquestionably fraudulent, and the only question for you to determine is, first, whether the suit which resulted in this decree was fraudulently and falsely instituted? If it was, then the other question is immaterial, except as to one defendant. If it was not falsely or fraudulently instituted, then the other question for your consideration is, Was this fraudulent decree obtained by fraudulent means ... used by these defendants? Now, when I pronounce this a fraudulent decree, I do not mean to characterize the conduct of the defendants, which I meant to leave exclusively to you." Held error, as the inference of intent was for the jury to draw. People v. Flack, 125 N. Y. 324, 1891.

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