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Ch. 204. tice &c. of the felony in stealing &c., the issuing of his warArt. 2.
rant, arrest, &c. the compounding with the offender : and an information against one for compounding a qui tam action, proceeds on the same principles,-states the grounds of the action, its commencement and prosecution, and he compounding of it. This offence in compounding informations, felonies, qui tam actions for penalties, and other criminal proceedings, is much oftener committed, especially in the United States, than prosecuted. This offence is attended with two no inconsiderable evils in particular : 1. This compounding holds out temptations to persons to offend, hoping by it they may escape punishment: 2. Strong teniptations to unprincipled men maliciously to inform &c., hoping and meaning to
make money by this kind of compromise. See Ch. 212, Art. 2.-§ 1. Conspiracy is an offence also against public
s. Case in Newa justice, and is a very common one. The civil action, grounded York much on a conspiracy, has been considered in a former chapter. examined.
And Ch. 200 ; Ch. 70, a. 5 ; Ch. 184, a. 5. 4 Bi. Com.
02. What is an indictable conspiracy. A conspiracy in 136.—2 Chit. law is when two or more agree, falsely, to indict, or procure C.L. 1150.- to be indicted, an innocent person of felony, or some offence 9 Co.
falsely and maliciously, who is accordingly indicted and acquitted ;-and is usually punished with fine, imprisonment,
and pillory. Poulterer's \ 3. The rule laid down in this case was, that to make
conspiracies punishable by law before they are executed, there dictments &c. for. Cro. must be four incidents : 1. It must be declared and shewn C. C.:267 to by some prosecution, either by making bonds or promises to
each :2. It must be malicious, as for unjust revenge &c. 3.
It must be false againsi one innocent: and 4. It must be volunWentw. 375, tary out of court. Conspiracy of journeymen to raise their 378.
wages. 6 Mod. 185.
84. So it is an indictable offence to conspire to indict one -Salk. 174, as the father of a bastard child. In this case the indictment Res v. Best. Same case,
alleged that the dests. intending to oppress and defame A. B., 6 Mod. 185. did, falsely and maliciously contrive, conspire, meet, and -8 Mod.
agree falsely to charge the said A. B. to be the father of a
bastard child, of which such a woman was pregnant, and in 285.- 1 Haw. pursuance thereof did falsely affirm him to be the father. On
demurrer, held, it was not necessary to aver that A. B. was not the father. The conspiracy is the gist of the offence and indictment; and though nothing be done in prosecution of
it, yet it is an offence in itself. The venue must be where Indictment 6
the conspiracy is. And 6 Mod. 186, held," the very agreeing for a conspiracy to get a
287.-4 Wentw. 79 to 146.-6
320,--Crown Cir Com.
P. C. 190.
together to charge a man with a crime falsely, is a consumbill accepted, mate offence, and indictable." And as to the want of aver378,382 ;-to ruin a tradesman, 439 ;- also a player, 443.
ment that A. B. was innocent, the law presumes every one Ch. 204. innocent, till proved guilty. Judgment against the conspira- Art. 3. tors, for they conspired to charge one falsely with fornication, and this, though no crime at common law, is punishable, said the court, in the spiritual courts.” “ And a confederacy falsely to charge with a thing that is a crime by any law, is indictable, and the confederacy is the gist of the indictment," -by the whole court. And 3 Salk. 97.
§ 5. So in this case it seems to have been the court's 8 Mod. 320, opinion, that several persons may be indicted of a conspiracy The King o
Edwards & in giving a man money to marry a poor woman not marriage- al. able, with intent to give her her husband's settlement in A, if it be averred she has a legal settlement in another place, ou the ground, a legal act done to an illegal end is indictable.
06. It is stated that where journeymen refuse to work in 4 Bl. Com. consequence of a combination, until their wages are raised, Chris. Notes, they may be indicted for a conspiracy.
0 7. So the court held in this case, that it is an indictable 6 D & E. 619, conspiracy to conspire to prevent the course of justice, by Rex v. Mawproducing a false certificate in evidence, to influence the bey & al. court's opinion, where a fair certificate is legal evidence, as of justices that a high-way is in repair. The indictment in this case stated the whole proceedings.
Ø 8. This was an indictment against the dest. and two others, 1 W. Bl. 368, for that they “wickedly and unlawfully did among themselves King . Risconspire, combine, confederate, and agree falsely, and without 1320, same any reasonable or probable cause, to charge and accuse the case.-2 said John Chilton, that he the said John Chilton had then, 1 Yelv. 46, lately, before taken out of a bag, a quantity of human hair,” to indiet one the goods of Rispal, &c. The indictment also stated, the as barrator. defts. compounded with Chilton, and took of him £30, and his note for £33, to desist from all prosecution against him. Held, this was a good indictment, and lay in the Sessions, a conspiracy being a trespass, and tending to a breach of the peace," and that the gist of the offence is the unlawful conspiring to injure the man by this false charge.
By the common law clearly every confederacy, wrongfully 1 Haw. 191. to prejudice a third person, is highly criminal, as where sev- -Crown C. eral confederate by indirect means to impoverish a third 1 Stra. 144. person. A conspiracy to raise wages is indictable at common law. 8 Mod. 10, R. v. Journeymen Taylors.
ART. 3. Evidence and forms.
$ 1. This was an indictment for a conspiracy to indict A 2 Burr. 993, for a capital offence. Held good, though the word falsely is Rex v. pot added to the first charge of the conspiracy, nor the par- Spragg & trh ticular cause there specified ; and though not alleged, A was acquitted of it, as the conspiracy was actually carried into effect,
Ch. 204. and the malicious indictment actually preferred. This was Art. 4. an indictment at common law; punishment was fine, imprison
ment, and pillory. Several forms of indictments for conspiraCom. 267,
cies. As against two for conspiring, one of them should rob the other, with intent to charge the hundred. To charge a man with a rape, and preferring an indictment against him for the same, with an intent to get money from him. To charge a man with receiving stolen goods, to get money by compounding &c. To charge one with sodomy, to get money by compounding &c. To charge one with robbery, and preferring a bill &c. A conspiracy among workmen to raise their wages. For a conspiracy and defrauding one of £50
under pretence of getting his son an office. As two at least 1 Haw. 192, must confederate to make a conspiracy, if all but one be ac
quitted, he is acquitted. Hence no prosecution of a conspiracy lies against husband and wife, because but one person in law.
A, B, and C indicted, A and B come in and plead, A is ac2 Stra. 1227, quitted and B convicted. C then came in and was convicted. Rex v. Ni. cholls.
dgment against B only on the ground C also was found guilty.
But one couspirator may be convicted after another is dead. 1 Stra. 193. And if one be convicted, judgment may be against him before Dersley & al. the other be tried.
And a conspiracy may be laid without an -4 BÍ. Com. overt act. And 3 Burr. 1262, Rex v. Scott. The villanous 136.
judgment is now obsolete. 2 Burr. 1027. Crown Cir. § 2. On an information for conspiracy, the fact of conCom. 287207 spiring need not be proved, but may be collected from other BI. 392.
circumstances. A person convicted on an indictment of a
conspiracy, cannot be a witness; but may be if pardoned. 2 Burr. 993. Rex v. Spragg was an indictment for conspiracy to indict
for a capital crime. Held good, though the word false was not in the first charge.
Art. 4. American cases of conspiracy. 2 Johns. Cas. § 1. A and B were indicted for a conspiracy to defraud C, 391, The and the verdict found A and B agreed to obtain money of C, People v. Olcott.
but with an intent to return it again. No verdict of acquittal, nor one on which any judgment could be given. Also held, the third might be tried and convicted after two had been
indicted, and one died before trial. 1 Mass. R. § 2. In this case three were indicted and convicted, and sen473, Com
tenced to six months' imprisonment, and to find security of the monwealth o. Ward & al. " good behaviour two years, for conspiring and for defrauding
one Davis, according to their conspiracy, of sundry goods. They got his goods on credit under false pretences of opening
shop &c. 2 Mass. R.
3. Held, a conspiracy to manufacture base and spurious monwealth indigo, with a fraudulent intent to sell the same as good and v. Three genuine indigo, is an indictable offence, though no sale be Judds.
made. One count in the indictment was for selling the same Ch. 204. at auction also. The jury found the fraudulent making &c. Art. 4. but did not find the sale. Desis. were acquitted of all but the first count, and that laid no act done in pursuance of the conspiracy. So the real offence was a conspiracy to manufacture Indictment a base article, and to sell it as a good one, generally, not to against defts. any particular persons. In this case, most of the English cases by conspiraon this subject of conspiracy were cited and considered, and cy, a ship from them all, the court drew this correct result, namely, be sunk, 6 " that the gist of a conspiracy is the unlawful confederacy to Wentw. 387, do an unlawful act, or even a lawful act for unlawful purposes ;” 389, six “ that the offence is complete when the confederacy is made, and any act done in pursuance of it, is no constituent part of the offence, but merely an aggravation of it.” “ This rule of the common law is to prevent unlawful combinations." Sentence to pay a fine of $50 each dest. with costs.
$ 4. So in this case the court decided the conspiracy being 2 Mass. R. 536, the gist of the offence, and acts done in pursuance of it being Commononly matter of aggravation, any informality or uncertainty in iwo Tibbels. alleging such acts will not vitiate the indictment : 2. In an indictment for a conspiracy to accuse one of a crime, it is not necessary to allege that the defts. procured, or intended to procure an indictinent or other legal process : 3.“ A conspiracy to charge any person with a crime, and in pursuance of the conspiracy falsely to affirm he is guilty, is an indictable offence, without procuring any legal process."
Art. 5. Evidence that proves a conspiracy.
$ 1. Proved at the trial the defts. together in a chaise came 6 Mass. R. to Putnam's shop, (the person cheated ;) that Warren went into 74, Commonthe shop, leaving Johnson in the chaise ; that in his absence Warren & Warren affirmed his name was William Lane, that he lived at Johnson.Gloucester and carried on shoemaking there, and that by dis- 33 1. Woc. appointment he had not by him the number of shoes he want- here, as to ed for a shipment to the Havanna, and wanted to buy a quan- false tokens. tity of Putnam on credit ; thereupon Warren obtained a delivery of a quantity of shoes; that he told Putnam that Jolinson was a man of credit who lived with him ; that Johnson then entered the shop, which was small, and was there when Warren made and signed the notes for the shoes by the name of William Lane ; but no evidence Johnson knew the tenor of the notes; that Warren went the next day to Putnam's shop without Johnson, and under the same feigned name, fraudulently purchased 200 pair of shoes more; that Johnson had 100 pair of the shoes thus sold, and by the name of William Smith sold them to one Chase. On a motion for a new trial, held, this evidence was sufficient to prove Johnson was a confederate with Warren in the same fraudulent design, especial
3 Burr. 1321.
Ch. 204. ly as he received and sold a part of the shoes, and gave no Art. 5. evidence to explain bis connexion with Warren.
§ 2. This was an indictment for a conspiracy with others 9 Mass. R. unknown, to compel one James W. Stearns to an unjust set415, Com
tleinent of bis accounts with Davis, and to alter the terms of a monwealth v. Davis.
contract between them as to brewing, and stated how &c. The indictment also charged, that Davis with others affirmed to Stearns, that he, Davis, was greatly indebted in New York; · that his creditors were then in town (Salem) and were about to attach Stearns' property for Davis' debts, that unless Stearns would give up the agreement and pay Davis $150 for the net profits already made, and a salary of $480 for the year following, all Stearns' property would be attached for Davis' debts ; that Stearns giving credit to these affirmations, did pay Davis $150&c. whereby Stearns was cheated &c. Deft. found guilty. On motion in arrest of judgment, held, the conspiracy is the gist
of the indictment, and the cheating is but aggravation. JudgIndictment for a conspi- ment not arrested. The reasons urged by the deft. were, in racy in bring substance, there was no evidence that Stearns was cheated : 2. ing a pauper that the facts affirmed were so absurd and improbable as not &c. 6 Went. to be entitled to public credit, so did not constitute an offence
against the public.
3. The Sessions has jurisdiction of conspiracy, it being a trespass and tending to a breach of the peace.
94. If two only be indicted of a conspiracy and one is
acquitted, it is also acquittal of the other. French Pe. $ 5. The law of France on this subject deserves attention. nal Code. M'Nally,
This, art. 265 to 268, enacts, that any number of men organized 420 to 430. for an evil purpose, or agreeing to share the profits of their
misdeeds, are an association of malefactors, and the leaders punishable by hard labour for a limited time, and the others
and all abetters by confinement. East's C. L. § 6. It is a conspiracy indictable at common law to entice 460, Rex v. Lord Gray & a young woman under age to leave her father's house and to
live in fornication with one of the defts., and concerting weasures with her own approbation to carry her off and to conceal
her for that purpose. East's C. L.
$ 7. It is a like offence to conspire to marry a pauper wo
man of one parish to a settled inhabitant of another. 2 Day's Cas. $ 8. A conspiracy may be proved by proving a concurrent 2015, Gardner approbation in the persons conspiring of the acts of each other : v.
2. And after a connexion between them is proved, the acts of one done in pursuance of the conspiracy may be in evidence against all : 3. In a conspiracy to defraud A by falsely representing B to be a man of credit, evidence that such representations were also made by the conspirators to third persons, in consequence of which such third persons, without the conspirators' request,
3 Mod. 220.