misdemeanors among themselves, even though one is more severely punished than the other. United States v. McDonald,* 3 Dill., 543.

§ 148. Dangerous weapon.- A pistol is a dangerous weapon, and it is a use of it to point it at another accompanied with words which denote an intention of injury, or without words, if it is shown and so held as to plainly indicate a design to injure in case of resistance or refusal to consent to the objects intended to be effected by its production and display. The display of a pistol, with threats of shooting, raises the presumption that it is loaded. United States v. Wilson, Bald., 78.

§ 149. Miscellaneous. It seems that a state cannot punish as a crime an act authorized by it by a constitutional law. United States v. New Bedford Bridge, 1 Woodb. & M., 415. $150. Where the evidence shows that one of two defendants is guilty, but does not show whith one, both must be acquitted. United States v. Dodd,* 15 Int. Rev. Rec., 9. $151. In the District of Columbia, a person convicted of crime in the criminal court may have an appeal to the general term. United States v. Wood,* 1 MacArth., 242.

II. CONSPIRACY.

[See XXVI, 3, infra.]

SUMMARY · Conspiracy defined, §§ 152-155.. - To defraud the government, § 154.— To prevent free exercise of rights, § 156. — Each liable for acts of all, §§ 157, 165.— Motive in joining a conspiracy immaterial, § 158.- Meeting and formal agreement not necessary, § 159.A conspiracy is formed, when, § 159-162, 165.- Proof as to time of formation of conspiracy, § 163.— Circumstantial evidence. § 164, 176.- Overt act, $ 165, 166, 176.— Proof of guilty connection, § 167.- Parties performing different acts, $$ 168, 171.Proof by statements, letters and telegrams, § 169. — Abandonment of design, § 170. — Need not originate with persons charged, § 172.— Under section 30, act of March 2, 1867, § 173, 178.- Not necessary to prove express agreement on the part of all, § 174.— Two conspirators enough, § 175.— Common design the essence of the charge, § 176.— Removal of spirits, $ 177-179.

$152. A conspiracy is an agreement between two or more persons to do an unlawful thing, or to do a lawful thing by unlawful means. The conspiracy is a crime, if nothing be done in pursuance of it. United States v. Mitchell, § 180-182. See § 215.

153. A conspiracy is formed when two or more persons agree together to do an unlawful act; that is, when they combine to accomplish, by their united action, a criminal or unlawful purpose. The statutory offense of conspiracy under the laws of the United States is complete when such agreement is made, or such combination is entered into, and one or more of the parties do any act to effect the object of the conspiracy. United States v. Goldberg, $S 182-194.

§ 154. A conspiracy is an agreement or combination between two or more persons to effect an unlawful purpose. The statutory offense, under the laws of the United States, which provide "that if two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty," is not complete until an act is done by some of the parties to carry into execution the fraud. The agreement or combination is the offense, but some act in furtherance of the agreement is necessary to render the offense indictable under the statute. United States v. Sacia, § 195–199. See § 237.

$155. A conspiracy is where two or more persons combine, confederate or agree to do any unlawful act. It may be proved by direct testimony of witnesses having positive knowledge of its existence, or it may be legally presumed from facts and circumstances leading with reasonable certainty to the conclusion of its existence. United States v. Smith, $ 207-214. $156. Upon the trial of an indictment for conspiring to violate the first section of the act of May 31, 1870, by unlawfully hindering and preventing a certain class of persons named therein from the future exercise of the right to vote at an election, the jury were instructed that if they found that there was a conspiracy, and that the defendant was a member of it, and that one of its purposes was that set forth in the indictment, the defendant was guilty. although the conspiracy had other objects also. But if the purpose of the conspiracy set forth in the indictment was not amongst the purposes of the conspiracy, if one existed, or the defendant was not engaged in it, or there was no conspiracy at all, the defendant was not guilty. United States v. Mitchell, § 180-182. See §§ 234, 235.

157. Each member of a conspiracy is responsible personally for every act of the conspiracy, and for the acts of each member thereof, done by common consent, in furtherance

of its illegal purposes; and also for such acts done in furtherance of the conspiracy not consented to beforehand, if assented to subsequently to their perpetration, and that whether the person charged was himself actually present or not when the acts were done. Ibid. See $224.

§ 158. It is immaterial that the motive of a person in joining a conspiracy was not illegal at the time, if he remains a member of, and participates in, the conspiracy after he is aware or has reason to know that the conspiracy is unlawful. Ibid.

§ 159. It is not necessary to constitute a conspiracy that the persons charged should meet together and enter into an explicit or formal agreement for an unlawful scheme, or that they should directly by words or in writing state what the unlawful scheme is to be and the details of the plan or the means by which the unlawful combination is to be made effective. It is sufficient if two or more persons, in any manner or through any contrivance, positively or tacitly come to a mutual understanding to accomplish a common and unlawful design. United States v. Goldberg. § 183-191.

§ 160. A mere discussion between parties about entering into a conspiracy, or as to the means to be adopted for the performance of the unlawful act, does not constitute a conspiracy, unless the scheme or some proposed scheme is assented to- concurred in by the parties in some manner so that their minds meet for the accomplishment of the proposed act. Ibid. § 161. A mere agreement or combination to effect an unlawful purpose, not followed by any act done by either of the parties to carry into execution the object of the conspiracy, does not constitute the offense under the statutes of the United States. There must be both the corrupt agreement or combination and an act or acts of the parties to effect the illegal object. Ibid.

§ 162. Where there is an attempted attainment of an unlawful end by two or more persons, who are actuated by a common design of accomplishing that end, and who in any way, and from any motive, or upon any consideration, work together in furtherance of the unlawful scheme, each one of the persons becomes a member of the conspiracy. Ibid.

§ 163. On an indictment for conspiracy it is not essential that the alleged conspiracy be shown to have been formed at the precise time or times stated in the indictment. It is sufficient, so far as time is concerned, that it be shown that about the time or times charged a conspiracy was in existence. Ibid.

§ 164. It is as competent to prove an alleged conspiracy by circumstances as by direct proof. Ibid.

§ 165. Where a conspiracy has been formed, and an act has been done by any one of the conspirators in pursuance of the conspiracy, that completes the offense as to all, and the act of the one becomes the act of all. Ibid. See §§ 224, 231, 249.

§ 166. The overt act which it is necessary to prove in order to convict persons charged with a conspiracy must not be an act which is a part of the agreeing or conspiring together, but it must be a subsequent independent act following a completed conspiracy and done to carry into effect the object of the original combination. Ibid. See § 231, 249.

§ 167. Guilty connection with a conspiracy may be established by showing association by the persons named with others, in and for the prosecution of the guilty object. Each party must be actuated by an intent to promote the common design, but each may perform separate acts or hold distinct relations in forwarding the design. Ibid. See § 248.

§ 168. If two persons pursue by their acts the same object, one performing one act or a part of an act, and the other performing an act or another part of the same act, so as to complete it with a view to the attainment of the object they are pursuing, a jury is at liberty to draw the conclusion that they have been engaged in a conspiracy to effect the object. Ibid.

§ 169. Statements, letters and telegrams of persons indicted for conspiracy are admissible as bearing on the question of the nature and existence of the alleged conspiracy and the connection of the alleged conspirators with it; but to establish the connection of any particular defendant with it, such connection must be shown by facts and circumstances independent of the declarations of others. When, however, such connection is shown by independent evidence, then a defendant is bound by the acts, declarations and statements of his co-conspirators, because in that event each is deeme l to assent to or command what is done by any other in furtherance of the common object. Ibid.

§ 170. Even though a combination was actually formed to do an illegal act, still if the design was abandoned before any act was done in furtherance of it, then no declaration or statement of one of the parties to the combination, made after such abandonment, will affect either of the others. Ibid.

§ 171. The existence of a conspiracy is proved, when it is proved that any two or more of the parties charged aimed, by their acts, to accomplish the same unlawful purpose, one performing one part, and another performing another part, although they never met together to concert the plan. United States v. Sacia, §§ 195–199.

§ 172. It is not necessary that a conspiracy should originate with the persons charged. Every one coming into a conspiracy at any stage of the proceedings, with knowledge of its existence, is regarded in law as a party to all the acts done by any of the other parties, before or afterwards, in furtherance of the common design. Ibid.

$173. A conspiracy under section 30 of the act of March 2, 1837, is an agreement or combination between two or more persons to effect the purpose declared by the act to be illegal. The gist of the offense is the conspiracy to do the illegal act, and the particular means employed, or to be employed, is immaterial. United States v. Rindskopf, $ 200-206.

$174. In order to maintain the charge of conspiracy it is not necessary to prove an express agreement between all the parties charged to do the illegal act. It is enough that all had the same illegal purpose, and that each acted a certain part tending or intended to accomplish it. It is not necessary to show that the parties had a previous acquaintance, or that each knew the part the others were to perform. Ibid.

§ 175. On an indictment for conspiracy, if one of the persons against whom it is charged becomes a witness for the government, he counts as one of the conspirators, and the indictment is sustained if it is proved as to him and one other. Ibid. See § 233.

$176. Upon a charge of conspiracy, an overt act which is itself criminal may be proved to show the existence of the conspiracy alleged. The common design is the essence of the charge, and may be shown by circumstances and the acts performed by the different allez d conspirators, and the fact that the several acts constitute separate criminal offenses GOs not exonerate the parties from conspiracy or bar a prosecution therefor. Ibid. See § 231, 249. § 177. On an indictment for a conspiracy to defraud the government, where the act charged is the fraudulent removal of spirits from a distillery without payment of the tax, the government is not bound to prove exactly the averments as to the dates and the quantity of spirits removed. United States v. Smith, § 207-214.

§ 178. On an indictment for a conspiracy to defraud the United States, under section 30 of the act of congress of March 2, 1867, it is necessary not only to prove the conspiracy but the overt act charged as being done in furtherance thereof. Ibid.

$179. Where the indictment charges a conspiracy to defraud the government, and the overt act charged is the removal of certain spirits from a bonded warehouse with intent to defraud the government, the prosecution is not obliged strictly to prove the ownership of the rectifying establishment to which it is charged they were removed. Ibid. [NOTES.-See $ 215-252.]

UNITED STATES v. MITCHELL.

(Circuit Court for South Carolina: 1 Hughes, 430-447. 1871.)

STATEMENT OF FACTS.-Indictment for a conspiracy with the object of maltreating and intimidating colored republicans, the conspiracy charged being that of the notorious Ku Klux Klan. The evidence consisted of proof of the murder of one person and cruel maltreatment of others, and of the system upon which the Klan conducted its operations.

$180. What is a conspiracy.

Charge by BOND, J.

You have listened with patience to the recital of the evidence in this cause, and without commenting upon that the court proposes to state to you the law applicable to the evidence which must guide you in making up your verdict. The indictment, gentlemen, is for a conspiracy, which is an agreement by two or more persons to do an unlawful thing, or to do a lawful thing by unlawful neans. The thing to be punished is the unlawful conspiracy, and not the particular acts done in pursuance of it. The conspiracy is a crime, if nothing be done in pursuance of it.

The indictment, gentlemen, contains two counts. The first charges the defendant and others, jointly indicted with him, with having conspired to violate the first section of the act of May 31, 1870, by unlawfully hindering, preventing and restraining a certain class of persons therein named from the future exercise of the right to vote at an election to take place in October, 1872, on account of their race, color or previous condition of servitule. And the sec

ond count charges that he, with others, did conspire to injure, because of his color, James Williams, because he had exercised the right to vote previously. It is to these counts that you are to refer the evidence, and to apply the law which the court gives you.

$181. Where it appears that there was a conspiracy in which the defendant took part, and its purpose was to effect one of the purposes charged in the indictment, it is sufficient for conviction.

If you find from the evidence that there was no such conspiracy as that described in the first count, or if there was a conspiracy the object of which and its purpose were different from that set forth in the count, and that the object and purpose set forth in the count was not one of its purposes and objects, then the party charged is not guilty under the first count, though he may have been engaged in the conspiracy. But it is not necessary, if the jury find there was a conspiracy, and that the party was engaged in it, that they should find its purpose to have been single. If they find that one of its purposes was that set forth in the first count, to prevent citizens from the exercise of the right to vote because of their color, it is sufficient. An association having such a purpose is an unlawful conspiracy, and a party engaged in it may be punished under the first count.

§ 182. Liability of each member of an unlawful association.

Each member of such an association is a conspirator, and is responsible, personally, for every act of the conspiracy, and for the acts of each member thereof, done by common consent, in furtherance of its illegal purposes, and also for such acts done in furtherance of the conspiracy not consented to beforehand, if assented to subsequently to their perpetration, and that whether the party charged was himself actually present or not when such act was done. And if the jury believe from the evidence that the various Klans spoken of by the witnesses were but parts of one general conspiracy, this rule applies not only to the members of the same Klan, but to the acts and conduct of the members of the different Klans done in furtherance of the conspiracy. And it makes no difference in guilt if you find from the evidence that the motive of a party who joined the conspiracy was not illegal when he did join it, if you also find that, after he became a member, he was aware of the fact, or had reason to know, that the true object of the conspiracy was to prevent or hinder the free exercise of the elective franchise by intimidation or violence, as aforesaid, on account of color, and that he still remained a member and participated in its meetings, and that, though you may also find he never himself actually used the force, intimidation or violence, and was not present when it was used. And now, if the jury find from the evidence that the party charged did so conspire to prevent the citizens described from exercising their right to vote on account of their color at a future election, specified to be the election to take place on the third Wednesday of October, 1872, then the party charged is guilty under the first count of the indictment. And if the jury find from the evidence that they did so conspire, and for the same reason, to injure and oppress, on account of his color, one Jim Rainey, alias Jim Williams, because he had antecedently, on the third Wednesday of October, 1870, exercised his right to vote, then he is guilty on the second count. But if the jury find from the evidence that no such conspiracy existed, or that, if it existed, the int midation or injury of voters, because of their exercise of the suffrage, or to prevent its exercise, formed no part of its purpose, or that, if that were its purpose, the defendant was not engaged in it, then the defendant is not guilty.

But the jury is not bound to believe the sole purpose of the conspiracy to be that set out in the first count; if they find it to be one of the purposes, it is sufficient. Nor if they find that the beatings and intimidation spoken of by the witnesses took place or existed, are the jury bound to believe that the reasons given at the time by the conspirators, if they find reasons were given, were the true reasons for such conduct, but the jury may determine, from all the evidence in the cause, what the true reasons were for such violence. If the jury find from the evidence, as we said before, that the conspiracy set forth in the first and second counts of the indictment existed, and the defendant engaged in it there, he is guilty on both counts. If there existed no such conspiracy at the time set out in the indictment, or, if existing, it had another object, which did not include that set out in the indictment, or, if existing and having the illegal purpose, the defendant took no part in it, then he is not guilty. The jury are at liberty to find one of three verdicts. They may find the party guilty generally, or not guilty generally, or they may find him guilty on one count and not guilty on the other. (Verdict, guilty on the second count.)

UNITED STATES v. GOLDBERG.

(Circuit Court for Wisconsin: 7 Bissell, 175-193. 1876.)

Charge by DYEr, J.

STATEMENT OF FACTS.- Gentlemen: It is charged in the first count of the indictment that on the 24th day of July, 1875, the defendants Philip Goldberg, Julius Jonas and A. M. Crosby conspired together to wilfully take and carry away, with intent to steal and destroy, certain papers, documents and records known as "Returns of Gaugers of Spirits," form 59, and as "Rectifier's Notice of Intention to Rectify," form 122, and other papers and documents then filed and deposited with John M. Hedrick, a supervisor of internal revenue of the United States.

As acts to effect the object of this alleged conspiracy it is charged in this count that, on the 25th of July, 1875, the defendants Philip Goldberg and Julius Jonas, at Milwaukee, asked and demanded from Leopold Wirth, Henry Schanfield, Louis Rindskopf, William Bergenthal, Samuel Rindskopf and Robert Kiewert, $50,000 with which to hire and induce certain persons to steal, take and carry away the said papers, documents and records; and that, on the 26th of July, 1875, the defendants Philip Goldberg and Julius Jonas, at Milwaukee, did meet, consult and confer together, and with Leopold Wirth, Louis Rindskopf, William Bergenthal, and other persons, to devise plans and means to steal, take and destroy said papers, documents and records, and traveled from Milwaukee to Chicago, and on the 29th of July, 1875, returned from Chicago to Milwaukee, and on that day at Milwaukee consulted and conferred with Samuel Rindskopf as to the means to be adopted to take and carry away from the possession of John M. Hedrick said papers, documents and records. The second count charges a conspiracy formed July 23, 1875, to wilfully take and carry away, with intent to steal and destroy, certain papers, documents and records in form required by regulations prescribed by the commissioner of internal revenue, and filed and deposited in the office of the collector of internal revenue for this district, which papers and documents were known as "Rectifier's Notice of Intention to Rectify," designated as form 122, a large number of which were given and made to the collector by Aaron Schoenfeld, as a rectifier, and a large number of which were given and made by Samuel,