whatsoever, which shall by any felony of misdemeanor have been stolen, taken, obtained, or converted as aforesaid, shall, unless he cause the offender to be apprehended and brought to trial for the same, be guilty of felony; and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years; and, if a male, to be once, twice, or thrice publicly or privately whipped, if the court shall so think fit, in addition to such imprisonment."

See Ledbitter's case, 1 Moo. C. C. 76 (a).

By s. 59, any person advertising a reward for the return of property, stolen or lost, and using any words purporting that no questions will be asked, or that a reward will be given for property stolen or lost, without seizing or making any inquiry after the person producing such property, or promising to return to any pawnbroker, or other person, who may [*364] have bought, or advanced money *upon any property stolen or lost, the money so paid or advanced, or any other sum of money or reward for the return of such property; or any person printing or publishing such advertisement; shall forfeit fifty pounds, to be recovered by action of debt.

The various cases in which a combination between two or more individuals to do certain acts, will amount in law to a conspiracy, and be punishable as such, will be shortly stated, and the evidence to support an indictment in such cases, will then be considered (1).

Proof of nature of conspiracy-in general. With regard to conspiracies in general, it is to be observed, that the nature of the offence requires that more than one person should be concerned in its commission.

(1) 1 Wheeler's C. C. 149, 222.

(a) 2 Eng. C. C. 76.

Conspiracy.

But where two persons are indicted for a conspiracy, one of them may be convicted, though the other, who has pleaded, and is alive, has not been tried, and though it is possible he may afterwards be acquitted. Cooke's case, 5 B. and C. 538 (a); 7 D. and R. 673 (b). A prosecution for a conspiracy cannot be maintained against the husband and wife only, for they are one person in law. Hawk. P. C. b. 1, c. 72, s. 8 (1).

An agreement by several to do a certain thing may be the subject of an indictment for conspiracy, though the same thing done separately by the several individuals, without any agreement between themselves, would not be illegal, as in the case of journeymen conspiring to raise their wages; for each may insist on his own wages being raised; but if several meet for the same purpose, it is illegal, and the parties may be indicted for a conspiracy. Mawbey's case, 6 T. R. 636; case of the Journeymen Tailors of Cambridge, 8 Mod. 11. So where several persons conspired to hiss at a theatre, Lord Mansfield held it indictable, though each might have hissed separately. Anon. cited in Mawbey's case, 6 T. R. 619. If several persons concur in the act, it appears that they will be all guilty of a conspiracy, notwithstanding they were not previously acquainted with each other (2). Per Lord Mansfield, case of prisoners in K. B. Hawk. P. C. b. 1, c. 72, s. 2. (n.)

The offence of conspiracy consists in the unlawful agreement, although nothing be done in pursuance of it, for it is the conspiring which is the gist of the offence. Best's case, 2 Ld. Raym. 1167; Spragg's case, 2 Burr. 993; Rispal's case, 3 Burr. 1321; 2 Russell, 553; Gill's case, 2 B. and Ald. 204.

Conspiring to do a lawful act, if for an unlawful end, is indictable. Edwards's case, 8 Mod. 320; 2 Russell, 553. (n.) And so with regard to a conspiracy to effect a legal purpose by unlawful means, and although the purpose be not effected. Journeyman Tailors of Cambridge, 8 Mod. 11. Best's case, 2 Ld. Raym. 1167; 6 Mod. 85; 2 Russell, 553; Eccles' case, Hawk. P. C. b. 1, c. 72, s. 3 (n.) (3).

Proof of nature of conspiracy-to charge party with offence.] A

(1) People v. Mather, 4 Wend 229. All who accede to a conspiracy after its formation are equally guilty with the original conspirators. Ibid. It may be between principal and clerk. Case of Robbins and al., 4 Rogers' Rec. 1. Comm. v. Judd, 2 Mass. 329. Comm. v. Davis, 9 Id. (2) People v. Mather, 4 Wend. 229. 415. State v. Rickie, 4 Halst. 223. State v. Buchanan, 5 Har. & J. 317. State v. Cawood, 2 Stewart, 360. Collins v. The Comm., 3 S. & R. 220. Comm. v. M'Kisson, 8 Id. 420. A conspiracy to commit a felony, if the felony be actually committed, is merged. Comm. v Kingsbury and al., 5 Mass. 106. Aliter in a misdemeanor. People v. Mather, Supra.

(3) The offence of conspiracy is of common law original, and not restricted or abridged by the statute 33 Edw. 1.

An indictment will lie at common law for a conspiracy

1. To do an act not illegal nor punishable if done by an individual, but immoral only:

2. To do an act neither illegal nor immoral in an individual, but to effect a purpose which has a tendency to prejudice the public:

3. To extort money from another, or to injure his reputation by means not indictable as verbal defamation, and whether it be to charge him with an indictable offence or not:

4. To cheat a person, accomplished by means of an act which would not in law amount to an indictable cheat in an individual:

5. To impoverish or ruin a third person in his trade or profession :

6. To defraud a third person by means of an act not per se unlawful, and though no person be thereby injured:

7. To defraud, though the means be not determined on at the time.

State v. Buchanan and al., 5 Har. and J. 317.

(a) Eng. Com. L. Rep. xii. 307. (b) Id. xvi. 316.

conspiracy to charge an innocent person with an offence, whether temporal or spiritual, is an indictable offence (1). Best's case, 2 Lord Raym. 1167; 1 Salk. 174; 2 Russell, 555. And it is no justification of such a conspiracy that the indictment was defective, or that the court had no jurisdiction, or that the parties only intended to give their testimony in a due course of law, for the criminal intention was the same. Hawk. P. C. b. 1, c. 72, s. 3, 4. Where the charge was for conspiring falsely to indict a person for the purpose of extorting money, and the jury found the de-. fendants guilty of conspiring to prefer an indictment for the purpose of extorting money (without saying falsely,) it was held sufficient, it being a misdemeanor, whether the charge was true or not. Hollingberry's case, 4 B. and C. 329 (a). Although several persons may not combine together [ *366 ] to prosecute an innocent person, yet they may meet together *and consult to prosecute a guilty person, or one against whom there is probable ground of suspicion. Hawk. P. C. b. 1, c. 72, s. 7; 2 Russell, 556. And no one is liable to any prosecution in respect of any verdict given by him in a criminal matter, either upon a grand or petit jury. Hawk. P. C. b. 1, c. 72, s. 5.

Proof of nature of conspiracy-to pervert the course of justice.] Any combination to obstruct, pervert, or defeat the course of public justice, is punishable as a conspiracy. Thus, a conspiracy to dissuade witnesses from giving evidence, is punishable, Hawk. P. C. b. 1, c. 21, s. 15; see Bushell v. Barret, Ry. and M. N. P. C. 434 (b); or to tamper with jurors. 1 Saund. 300; Joliffe's case, 4 T. R. 285. So where several persons conspired to procure others to rob one of them, in order, by convicting the robber, to obtain the rewards then given by statute in such case, and the party who accordingly committed the robbery was afterwards convicted, and actually executed, these persons were indicted for the conspiracy and convicted. Macdaniel's case, 1 Leach, 45; Fost. 130. So a conspiracy, by justices of the peace, to pervert the course of justice by producing a false certificate of a high road being in repair, is punishable. Mawbey's case, 6 T. R. 619. A conspiracy to prevent a prosecution for felony, is as much an offence as a conspiracy to institute a false prosecution. Per Ld. Eldon, Claridge v. Hoare, 14 Ves. 65.

Proof of nature of conspiracy-conspiracies relating to the public funds, &c.] The conspiring by false rumors to raise the price of the public funds on a particular day, with intent to injure purchasers, has been held to be an indictable offence, and also that the indictment is good, without specifying the particular persons who purchased, or the persons intended to be injured. It was also held, that the public government funds of this kingdom might mean either British or Irish funds. De Berenger's case, 3 M. and S. 67. Bayley, J., said, that to constitute this an offence, it was not necessary that it should be prejudicial to the public in its aggregate capacity, or to all the king's subjects; but that it was sufficient if it were prejudicial to a class of the subjects. Id. 75. See Crowther v. Hopwood, 3 Stark. N. P. C. 21 (c); 2 Dod. Ad. Rep. 174. So a conspiracy to impoverish the farmers of the excise was held indictable; for it

(1) Comm. v. Tibbetts and al., 2 Mass. 536.

(a) Eng. Com. L. Rep. x. 346. (b) Id. xxi. 483. (c) Id. xiv. 149.

tended to prejudice the revenue of the crown. Starling's case, 1 Sid. 174; 2 Russell, 559. So a conspiracy to obtain money, by procuring from the lords of the treasury the appointment of a person to an office in the customs, was ruled by Lord Ellenborough to be a misdemeanor. Pollman's case, 2 Campb. 229.

Proof of nature of conspiracy-to create a riot-cause mutiny, &c.] A conspiracy to commit a riot is indictable. 2 Russell, 560; 2 Chitty, C. L. 506. (n.) So if a body of persons go to a theatre with the settled intention of hissing an actor or damning a piece, such a deliberate and preconcerted scheme would amount to a conspiracy. Per Lord [*367 ] Ellenborough, Clifford v. Brandon, 2 Campb. 369; 6 T. R. 628. A combination amongst officers of the East India Company to resign their commissions, with a view to force the company to make them an additional allowance, is indictable, as tending to excite insurrection, and a resignation made under such circumstances is not a determination of the service. Vertue v. Lord Clive, 4 Burr. 2472.

Proof of nature of conspiracy-against morality and public decency.] A combination to do any act contrary to morality or public decency is a punishable misdemeanor, as a conspiracy to seduce a young woman. Lord Grey's case, 3 St. Tr, 519: 1 East, P. C. 460. So a conspiracy to take away a young woman, an heiress, from the custody of her friends, for the purpose of marrying her to one of the conspirators. Wakefield's case, (Murray's ed.) 2 Deac. Ab. C. L. 4. A conspiracy to prevent the burial of a corpse, though for the purposes of dissection, has been held to be an indictable offence. Young's case, cited 2 T. R. 734; 2 Chit. C. L. 36. Vide post, title, Dead Bodies.

Proof of nature of conspiracy-to marry paupers.] The conspiracy by sinister means to marry a pauper of one parish to a settled inhabitant of another, is an indictable offence. Tarrant's case, 4 Burr. 2106; Herbert's case, 1 East, P. C. 461; Compton's case, Cald. 256. Where the marriage is by consent of the parties, although money has been given to one of them by the overseers to procure it, it is not an indictable offence. In such a case, Buller, J., directed an acquittal, holding it necessary, in support of such an indictment, to show that the defendant had made use of some violence, threat, or contrivance, or used some sinister means to procure the marriage, without the voluntary consent or inclination of the parties themselves; that the act of marriage, being in itself lawful, a conspiracy to procure it could only amount to a crime by the practice of some undue means; and this he said had been several times ruled by different judges. Fowler's case, 1 East, P. C. 461; and the same has been determined in a recent case. Seward's case, 1 Ad. and Ell. 706 (a), 3 Nev. and M. 557. Where it is stated to have been by threats and menaces, it is not necessary to aver that the marriage was had against the consent of the parties, though that fact must be proved. Parkhouse's case, 1 East, P. C. 462.

A conspiracy to exonerate a parish from the prospective burthen of maintaining a pauper not at the time actually chargeable, and to throw the burthen upon another parish, by means not in themselves unlawful, is

(a) Eng. Com. L. Rep. xxviii. 185.

not an indictable offence. Seward's case, 3 N. and M. 557: 1 Ad. and Ell. 706.

Proof of nature of conspiracy-affecting trade-to defraud the public, &c.] A conspiracy to impoverish A. B. a tailor, and to prevent him by indirect means from carrying on his trade, has been held to be indictable. [ *368 ] Eccles's case, 1 Leach, 274; 3 Dougl. 337 (a). *This offence was considered by Lord Ellenborough to be a conspiracy in restraint of trade, and so far a conspiracy to do an unlawful act affecting the public. Turner's case, 13 East, 228. Though persons, in possession of articles of trade, may sell them at such prices as they individually may please, yet if they confederate, and agree not to sell them under certain prices, it is a conspiracy. Per Lord Mansfield, Eccles's case, 1 Leach, 276. Where, in an action for libel, it appeared that certain brokers were in the habit of agreeing together to attend sales by auction, and that one of them only should bid for any particular article, and that after the sale there should be a meeting, consisting of themselves only, at another place, to put up to sale among themselves, at a fair price, the goods that each had bought at the auction, and that the difference, between the price at which the goods were bought at the auction and the fair price at this private re-sale, should be shared amongst them, Gurney, B., said, "Owners of goods have a right to expect at an auction that there will be an open competition from the public; and if a knot of men go to an auction, upon an agreement amongst themselves of the kind that has been described, they are guilty of an indictable offence, and may be tried for a conspiracy." Levi v. Levi, 6 C. and P. 240 (b).

A conspiracy to raise money by means of a bill importing to be a country bank bill, where there is no such bank, and none of the parties are of ability to pay the bill, is indictable. Anon. Pasch. 1782, Bayley's MSS. Vide post, 370 (1).

Proof of nature of conspiracies-of workmen to raise wages, &c.] Though every man may work at what price he pleases, yet a combination not to work under certain prices is an indictable offence. Per Lord Mansfield, Eccles's case, 1 Leach, 276. So a combination by workmen, to prevent the workmen employed by certain persons from continuing to work in their employ, and to compel the masters to discharge those workmen, is a conspiracy, and punishable as such. Bykerdike's case, 1 Moody and Rob. 179. So a conspiracy by workmen to prevent their masters from taking any apprentices; and it is no variance upon such an indictment, if it appears that the conspiracy was to prevent the masters from taking more than a certain number they then had. Ferguson's case, 2 Stark. N. P. C. 489 (c). If the masters of workmen combine together to lower the rate

(1) A conspiracy to manufacture a base material in the form and color of genuine indigo, with intent to sell it as genuine, is indictable. Comm. v. Judd & al., 2 Mass. 329. S. C. 2 Wheeler's C. C. 293. So a conspiracy in falsely pretending they were about to enter on business, whereby they obtained goods on credit, when the intention was to procure the goods, sell them at an under price and leave the commonwealth, is indictable. Comm. v. Ward, 2 Mass. 473. But it has been held not an indictable offence for several persons to conspire to obtain money from a bank, by drawing their checks on the bank when they have no funds there. State v. Rickie, 4 Halst. 223.

(a) Eng. Com. L. Rep. xxvi. 131. (b) Id. xxv. 377. (e) Id. iii. 443.