4. RESPUBLICA V. LANGCAKE, ET AL. Jan. T. 1795, Yates' Penn. Indictment against the defendants for maihem.] The decla rations of be-a deccased short time The declarations of one T. Langcake, made a short time fore his death, were offered in evidence for the defendants. appeared that he was concerned in the same assault with the de- before his fendants, and had been recognized to answer the charge with death, who them, but died before the jury found the indictment. The whole bound over Court resolved that these declarations could not be received. 5. had been to answer a charge of maihem, cannot be given in evi dence by defendant. PENNSYLVANIA V. STOOPS, March T. 1799, Addison's Penn. the other Rep. 381. S. C. 3 Dane's Abr. of Amr. Law, 339, 26. sec. But the de a deceased person need The defendant was indicted for the murder of his wife, and her position of deposition, taken about two weeks before her death, was offered in evidence against the prisoner, which was objected to, it not be sign appearing that the deposition was not signed by the deceased, but the Court held the evidence admissible. ed. 6. STATE V. POLLAND LAVINIA. Dec. T. 1821, 1 Hawk's N. Ca. Rep. 442. Per Cur Taylor, C. J. The latest and most authoritative cases show that the court is to decide and not the jury, whether the deceased made the declaration under the apprehension of death;* 1 East's Pl. Cr. 357. The court must decide whether the ed, made the deceas the declara tions under the appre death. * Before dying declarations can be admitted in evidence against a prisoner, it hension of must be satisfactorily proved that the deceased, at the time of making them was conscious of his danger, which consciousness is to be collected from the circumstances; Rex v. Woodcock, 1 Leach, C. L. 500; S. C. 8 Petersdorff's Abf. 343 (498;) S. P. Rex v. Nadburne, 1 Leach, C. L. 406; Richardson's case, 2 Leach, C. L. 561. And it must also appear that the party was not incompetent to have given evidence on oath; therefore, the declaration of a felon at the place of execution is inadmissable; Rex v. Drummond, 1 Leach, C. L. 337. (But that of an accomplice, is admissible, since the accomplice, if living, might have been examined upon oath; see East. P. C. 354; and in Tinkler's case a majority of the judges held that the death bed declaration of a deceased accomplice was alone sufficient to convict the prisoner, because the declarant, in that situation, could have no interest in excusing herself, or unjustly charging others; East's. P. C. 354, 356. Dying declarations have been admitted, though it appeared that the deceased made subsequent statement which had been taken in writing before a magistrate, such examination not being ready to be produ"ed at the trial; Rex v. Reasen, 1 Stra. 499. Confidence, professional. See tit. Attorney, VII. (B) vol. 2. p. 30. Consequential Enjurics. See tits. Action, (H) (3) vol. 1. p. 187; Case, Action cn. vol. 2, 573. Consideration. See tits. Bills and Notes, V. vol 2. 208 Bond, III. vol. 2. 384; Contracts, pest. and particular titles. Consolidation. See tit. Action, IX. vol. 1. 221. Conspiracy.* 1. IN CRIMINAL CASES. (A) OF THE ACTS WHICH CONSTITUTE THE OFFENCE, p. 289. (B) OF THE INDICTMENT, p. 291. (C) OF THE EVIDENCE, p. 295. II. IN CIVIL CASES. (A) WHEN AN ACTION FOR A CONSPIRACY LIES, P. 296. (B) OF THE DECLARATION, p. 297. (C) OF THE EVIDENCE, p. 299. * A conspiracy is a consultation and agreement between two or more persons either falsely to charge another with a crime punishable by law; or wrong fully to injure or prejudice a third person, or any body of men in any other manner; or to commit any punishable offence by law; or to do any act with intent to prevent the course of justice; or to effect a legal purpose with a corrupt intent, or by improper means; and by 33 Edw. 1. St. 2, conspirators are thus defined: "conspirators be they, that do confederate or bind themselves by cath, covenant, or other alliance, that every of them shall aid and bear the other falsely and maliciously, to indict or cause to indict, or falsely to move or maintain pleas, and also such a cause children within age to appeal, men of felony whereby they are imprisoned and sore grieved, and such as retain men in the country with licences or fees to maintain their malicious enterprizes, and this extendeth as well to the takers as to the givers, and stewards and bailiffs of great lords, which by their si nory, office or power, undertake to bear or maintain quarrels, pleas, or debates, that concern other partys than such as touch the estate of their lords or themselves." From this definition of conspirators, it seems clearly to follow, that not only those who actually cause an innocent man to be indicted, and to be tried upon the indictment, and lawfully acquitted, are properly conspirators; but persons are also guilty of this offence who barely conspire to indict a man falsely and maliciously, whether they do any act in furtherance of such conspiracy or not, for the words of the statute seem expressly to include all such confederacies under the notion of conspiracy, whether there be or he not any prosecution; 1 Hawk. P. C. c. 72, s. 2. But it is said, that it does not appear to have been solemnly resolved that persons offending by a false and malicious accu I. IN CRIMINAL CASES. (A) OF THE ACTS WHICH CONSTITUTE THE OFFENCE, 1. THE STATE v. BUCHANAN, Dec. T. 1821. 5 Har. & Johns. Md. Per Cur. Buchanan, J. An indictment will lie at The acts which con law. common law; 1. For a conspiracy to do an act not illegal, nor stitute the punishable if done by an individual, but immoral only. 2. For offence of conspiracy a conspiracy to do an act neither illegal, nor immoral in an in- at common dividual, but to effect a purpose which has a tendency by means not indictable, if practised by an individual, as by verbal defamation, and that whether it be to charge him with an indictable of fence or not. 4 For a conspiracy to cheat and defraud a third person, accomplished by means of an act which would not in sation against another, are indictable upon this statute. Mr. Archbold, in his treatise on pleading in criminal cases, p. 390, defines a conspiracy to be an agree ment between two or more persons. 1. Falsely to charge another with a crime punishable by law. 2. Wrongfully to injure or prejudice a third person, or any body of men in any manner. 3. To commit any offence punishable by law, 4. To do any act with intent to prevent the course of justice. 5. To effect a legal purpose with a corrupt intent, or by improper means. 6. Combination by journeymen to raise their wages; Arch. Cr. Pl .390, 1. The following provisions upon this subject have been made by the legislature of New York; 2 Rev. Stat. 691, and 692, s. 8. If two or more persons shall conspire, either. 1. To commit any offence: or, 2. Falsely and maliciously to indict another for any offence, or to procure another to be charged or arrested for any such offence: or, 3 Falsely to move or maintain any suit: or, 4. To cheat and defraud any person of any property by any means which are in themselves criminal: or, 5. To cheat and defraud any person of any property by any means which, if executed, would amount to a cheat, or obtaining money or property by false preten ces: or, 6. To commit any act injurious to the public health, to public morals, or to trade or commerce; or for the perversion or obstruction of justice or the due admin. istration of the laws: They shall be deemed guilty of a misdemeanor. Sec. 9. No conspiracies, other than such as are enumerated in the last section, are punishable riminally. Sec. 10. No agreement, except to commit a felony upon the person of another, or to commit arson or burglary, shall be deemed a conspiracy, unless some act beside such agreement be, done to effect the object thereof, by one or more of the parties to such agreement. VOL. III. 37 law amountto an indictable cheat, if effected by an individual. 5. For a malicious conspiracy to impoverish, or ruin a third per son in his trade, or profession. 6. For a conspiracy to defraud a third person by means of an act not per se unlawful, and though no person be thereby injured. 7. For a bare conspiracy to cheat, or defraud a third person, though the means of effecting it, should not be determined on at the time. 8. A conspiracy is a substantive offence, and punishable at common law, though nothing be done in execution of it. A combina tion to raise 2. COMMONWEALTH V. CARLISLE, Feb. T.1821, 1 Journal of Jurisprudence, 225. S. C. Wharton's Dig. of Penn. Rep. 96. Per Cur. Gibson, J. A combination is a conspiracy in law, or depress whenever the act to be done has a necessary tendency to prejthe price of udice the public, or to oppress individuals, by unjustly subjectconspiracy. ing to the power of confederates, and giving effect to the pur labour is a poses of the latter, whether of extortion, or mischeif. Every association therefore is criminal, whose object is to raise or depress the price of labour, beyond what it would bring if it were left without artificial excitement. And the of fence is complete is made without any suance of it. 3. COMMONWEALTH V. JUDD, ET AL. March T. 1807, 2 Mass. Rep. 329. S. P. STATE V. RIKEY, AND OTHERS, 4 Halst. Rep. 293, to 315. Per Cur. Parsons, C. J., After fully considering the sev cral cases, the Court are satisfied that the gist of a conspiracy when the is the unlawlul confederacy, to do an unlawful act, or even a confederacy. lawful act for unlawful purposes. That the offence is complete, act being when the confederacy is made, and any act done in pursuance done in pur 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. A solitary offender may be easily detected and punihsed. But combinations against law are always dangerous to public peace, and to private security. To guard against the union of numbers to effect an unlawful design, is not easy, and to detect and punish them is often difficult. The unlawful confederacy is therefore punished to prevent the doing of any act, in execution of it. Of this principle the adjudged cases leave no doubt. 4. COMMONWEALH V. FISHER, ET AL. March T. 1809, 5 Mass. But if a felo Indictment against the defendants for a conspiracy. It appear- nious act be ed they had obtained divers goods, under false pretences, from perpetrated the conspir one Pons, for which offence one of the defendants was convict- acy is merg ed, and a motion was made in arrest of judgment, because the ed in the fel offence charged amounted to a felony, and the conspiracy charged was merged in it. Per Cur. Parsons, C. J. The fraudulently obtaining possession of the chattels of Pons, carrying them away, and secreting them, is unquestionably a felony. We have considered this case, and are of opinion that the misdemeanor is merged. Had the conspiracy not been effected, it might have been punished as a distinct offence; but a contrivance to commit a felony, and executing the contrivance, cannot be punised as an of fence, distinct from the felony, because the contrivance is a part of the felony, when committed pursuant to it. Judgment arrested. (B) THE INDICTMENT. 1. THE STATE v. BUCHANAN, ET AL. Dec. T. 1821, 5 Har. & ony. ment for a commission Per Cur. Buchanan, J. Every conspiracy to do an unlaw- An indict ful act, or to do a lawful act for an illegal, fraudulent, mali- conspiracy cious, or corrupt purpose, or for a purpose which has a tenden- lies for the cy to prejudice the public in general, is at common law an in- of an unlaw dictable offence, though nothing be done in execution of it, and ful act, or a no matter by what means the conspiracy was intended to be ef- for an un fected; which may be perfectly indifferent, and makes no in- pose. gredient of the crime. lawful act lawful pur 2. LAMBERT V. THE PEOPLE, May T. 1827. 7 Cowen's N. Y. Rep. 166. S. C. 7 Cowen's Rep. 103; S. C. 9 Cowen's Rep. 578 to 625. Error from the Court of Oyer and Terminer And lies for a conspira fraud a per Lambert was indicted in the court below for a conspiracy to cy to de defraud the Sun Fire Ins. Co., and convicted. One of the, er- son. |