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CHAPTER VII.

CONSPIRACY.

CONSPIRACY is a combination of two or more persons to do an unlawful act, whether that act be the final object of the combination, or only a means to the final end, and whether that act be a crime, or an act hurtful to the public, a class of persons, or an individual.

The gist of the offense is the combination.() Of this of fense a single person can not be convicted, unless, indeed, he is indicted with others, who may, however, be dead or unknown to the jurors.() And, on the same ground, man and wife can not by themselves be convicted, for they are one person. Many acts, innocent if done by one person, become criminal if they are the result of agreement by two or more persons. Thus A. and B. each commit adultery under the same circumstances, the most aggravated and cruel. B.'s conduct differs from A.'s only in the fact that he gets C. to lend him a carriage for the purpose of elopeA. is not, B. is, within the grasp of the crimina. law.(k) We have just remarked that the gist of the of fense is the agreement. A mere intention will not suffice to constitute the crime.() But if the agreement (the con

ment.

(i) The law of conspiracy is the most complete illustration of the fiction consisting in treating as a crime not the very acts which are intended to be punished, but certain ways of doing them.-Fitz. St. 62. (j) 1 Hawk., c. 72, § 8.

(k) “It is not apparent, at first sight, why conspiracy, which is one out of many possible aggravations of an act, should have been selected as the one by which its criminal character should be determined. . . . The probable explanation is, that in early times the most prominent conspiracies were usually attended with great violence, and that, in defining the crime, words were used which included offenses of much less importance than those which were originally contemplated.”— - Fitz. St. 62.

(1) Mulcahy v. R., L. R. 3 II. L. Ap. Ca. 306.

spiracy itself) can be proved, there is no need to prove that any thing has been done in pursuance of it. Of course, the existence of the unlawful agreement is generally evidenced by some overt acts, but these are evidence merely, and not material if the agreement can be proved otherwise. (m)

The definition shows a conspiracy to be an agreement to do an unlawful act. It is the indefinite meaning of this word "unlawful" that gives to the crime of conspiracy its wide extent. The widest discretion is intrusted to the judges, in whose power it seems to be thus to declare criminal combinations to do almost any thing which they regard as morally wrong, politically or socially dangerous, or otherwise objectionable. (n) Three classes of conspiracy may be distinguished: (0)

1. When the end to be accomplished would be a crime in each of the conspiring parties; in other words, a conspiracy to commit a crime. The case of murder is specially provided for by statute, the person conspiring being liable to penal servitude to the extent of ten years. (p) And by the same statute one who solicits, encourages, persuades, or endeavors to persuade, or proposes to any person to murder any other person, is liable to the same punishment. Such an offense is completed by the publication of an article in a newspaper, although not specifically addressed to any one person.(q)

2. When the ultimate purpose of the conspiracy is lawful, but the means to be resorted to are criminal, or, at the least, illegal; in other words, to effect a legal purpose with a corrupt intent or by improper means—for example, to support a cause believed to,be just by perjured evidence; to break into another's house, in order to obtain one's property.

We have already noticed the case of trade conspiracies, and referred to an exception to the common-law doctrine in such matters. (r)

(m) R. v. Gill, 2 B. & Ald. 204.

(n) "It is not altogether inconvenient to have a branch of the law which enables the courts, by a sort of ostracism, to punish people who make themselves dangerous or obnoxious to society at large, and the necessity for quoting precedents--the publicity of the proceedings-and the general integrity of the judges, are probably sufficient safeguards against its abuse, but it would be idle to deny that the power is dangerous and ought to be watched with jealousy."--Fitz. St. 149.

(0) See Final Report of Roy. Com. on Labor Laws. (p) 24 and 25 Vict., c. 100, ? 4.

(r) v. pp. 106-108.

(9) R. v. Most, 7 Q. B. D. 244.

3. Where, with a malicious design to do an injury, the purpose is to effect a wrong, though not such a wrong as, when perpetrated by a single individual, would amount to an offense against the criminal law. We may distinguish the following cases:

(a.) Falsely to charge another with a crime-whether from malicious and vindictive motives, or to extort money from him. But, of course, two or more persons may agree to prosecute a person against whom there are reasonable grounds of suspicion.

(b.) To do an act with intent to pervert the course of justice, for this is an injury to the public at large-for example, when two or more agree together that one of them. shall be robbed by the others, in order that they may obtain the statutory reward for conviction.()

(c.) Generally Wrongfully to injure or prejudice others, whether an individual, a body of men, or the public, in any other manner. The varieties of this offense are innumerable, but two or three examples will suffice: To injure a man in his trade; to raise the price of the public funds by false rumors; to violate morality and public decency by inducing a woman to become a common prostitute.(s) But it is said that not every combination to effect a tort is criminal; that wherever a combination to commit a civil injury has been held criminal, the injury has been malicious (using the term in the non-technical sense)-for example, a combination to pull down a fence would not be criminal, if the only object of the act were to try a question as to the right of way.(t)

Conspiracy is a misdemeanor, punishable by fine or imprisonment, or both; in the case of conspiracy to murder, by penal servitude to the extent of ten years.(u) This crime falls under the provision of the vexatious indictments act.(x)

[Conspiracy is punished as a misdemeanor of common

(r) R. v. Macdaniel, 1 Leach, 45.

(s) v. Arch. 980, for other instances.

(t) Rosc. 410; R. v. Turner, 13 East. 228.

(u) v. supra.

(r) v. p. 288.

law in Kentucky.(1) In Ohio, there are no crimes by force of the common law, and there is no statute making conspiracy a separate offense. In Indiana, combination by two or more persons to commit a felony is itself a felony.(2) The clause in this act which provides that it shall be unnecessary, in an indictment, to specify the felony which the combination proposed to commit, has been held unconstitu tional.(3) In Illinois, conspiracy to falsely indict an innocent person is a misdemeanor; conspiring, with malicious intent, to wrongfully injure another, or obtain money or other property under false pretenses, or to do any illegal act, injurious to the public trade, health, morals, or the administration of justice, or to prevent competition in public contracts, or to commit any felony, or to commit any offense against the state, or any county, city, village, town. or township, is a felony.(4) In Michigan, conspiracy is not specifically named in the statutes, but it is enacted that every person who shall commit an offense indictable at common law, for the punishment of which no express provision is made by statute, shall be punished by fine and imprisonment in jail.(5.) In Iowa, conspiracy is the same as defined in Illinois, omitting the last clause, "to commit any offense against the state," etc., and is punished by imprisonment in the penitentiary, or by fine and imprisonment in jail.(6)]

If the purpose of the conspiracy is a felonious one, and actually carried out, the conspiracy is merged in the felony; so that after a conviction for the felony the defendant can not be tried for the conspiracy. But if the defendant is indicted for the conspiracy, he is not entitled to an acquittal, because the facts show a felony. Under such circumstances, however, he can not be subsequently tried for the felony unless the court has discharged the jury from giving a verdict on the misdemeanor. (y)

(y) 14 and 15 Vict., c 100, 12.

(1) Christian v. Commonwealth, 13 Bush, 264; Commonwealth v. Blackburn, 1 Duv. 5.

(2) Rev. Stat., 1876, p. 451. (4) Rev. Stat.. 1877, p. 355. (6) Ibid., 1873, p. 638.

(3) Landringham v. State, 49 Ind. 186.

(5) Ibid., 1871, p. 2152.

CHAPTER VIII.

OFFENSES AGAINST PUBLIC MORALS, HEALTH, AND GOOD

ORDER.

UNDER this head will be noticed a somewhat miscellaneous class of offenses which are considered to affect the public rather than the individual; though some of them at first sight appear rather to concern particular persons, e. g., bigamy. Throughout the whole of the criminal law there can be traced an unwillingness to resort to any thing characteristic of paternal government. As a rule, mere immorality is not punished until it invades the rights of others than those who participate in it, whether by public evil example or otherwise. Thus a mere falsehood is not punishable; but if it involves a fraud on another, then the law steps in with its punishment.

BIGAMY. (1)

The offense consists in marrying a second time, while the defendant has a former husband or wife still living.

Not only is the second marriage void, but it also constitutes a felony; and this whether the second marriage took place in the United Kingdom or elsewhere. There are certain cases which are excepted by the statute which declares the second marriage generally felonious:

i. A second marriage contracted elsewhere than in England or Ireland by any other than one of her majesty's subjects.

ii. A second marriage by one whose husband or wife has been continually absent from such person for the last seven years, and has not been known by such person to be living within that time. But if there is no proof that the husband and wife had ever separated, the prosecution is not bound to prove that the prisoner knew that his wife was alive within six years of the second marriage.(z)

(1) U. S. Rev. Stat., ? 5352.

(2) R. v. Jones, 11 Q. B. D. 118; 52 L. J. (M. C.) 96; 48 L. T. N. S. 768; 31 W. R. 800. See also R. v. Willshire, 14 Cox, 541.

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