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meeting and consultation for the illegal purpose charged, or more usually, from the very nature of the case, circumstantial. 2 Stark. Ev. 232, 2d ed.; Cope's case, 1 Str. 144. Thus upon a trial of an information for a conspiracy to take away a man's character, by means of a pretended communication with a ghost in Cock-lane, Lord Mansfield directed the jury that it was not necessary to prove the actual fact of conspiracy, but that it might be collected from collateral circumstances. Parson's case, 1 W. Bl. 392. Upon an information for a conspiracy to ruin Macklin, the actor, in his profession, it was objected for the defendants that, in support of the prosecution, evidence should be given of a previous meeting of the parties accused, for the purpose of confederating to carry their object into execution. But Lord Mansfield overruled the objection. He said, that, if a number of persons met together for different purposes, and afterwards joined to execute one common purpose, to the injury of the person, property, profession, or character of a third party, it was a conspiracy, and it was not necessary to prove any previous consult or plan among the defendants, against the person intended to be injured. Lee's case, 2 M'Nally on Evid. 634. A husband, his wife, and their servants were indicted for a conspiracy to ruin a card-maker, and it appeared that each had given money to the apprentices of the prosecutor to put grease into the paste, which spoiled the cards, but no evidence was given of more than one of the defendants being present at the same time; it was objected that this was not a conspiracy, there being no evidence of communication; but Pratt, C. J., ruled that the defendants, being all of one family, and concerned in making cards, this was evidence of a conspiracy to go to a jury. Cope's case, 1 Str. 144; 2 Russell, 571; 2 Stark. Ev. 232, 2d ed.
If, on a charge of conspiracy, it appear that two persons by their acts are pursuing the same object, and often by the same means, the one performing part of an act, and the other completing it for the attainment of the object, the jury may draw the conclusion that there is a conspiracy. If a conspiracy be formed, and a person joins it afterwards, he is equally guilty with the original conspirators. Also, if on a charge of conspiracy to annoy a broker, who distrained for church-rates, it be proved that one of the defendants (the other being present,) excited the persons assembled at a public meeting to go in a body to the broker's house, evidence that they did so go is receivable, although neither of the defendants went with them; but evidence of what a person, who was at the meeting, said some days after, when he himself was distrained on for church-rates, is not admissible. Per Coleridge, J., Murphy's case, 8 C. and P. 297 (a).
The existence of a conspiracy may be established either as above stated, [*375] by evidence of the acts of third persons, or by evidence of *the acts of the prisoner, and of any other with whom he is attempted to be connected, concurring together at the same time and for the same object. And here, says Mr. East, the evidence of a conspiracy is more or less strong, according to the publicity or privacy of the object of such concurrence, and the greater or less degree of similarity in the means employed to effect it. The more secret the one and the greater coincidence in the other, the stronger is the evidence of conspiracy. 1 East, P. C. 97 (1).
(1) People v. Mosher and al., 1 Wheeler's C. C. 246. People v. Mather, 4 Wend. 229. Comm. v. Clark, 6 Mass. 74. (a) Eng. Com. L. Rep. xxxiv. 397.
Proof of the existence of conspiracy-declarations of other conspirators.] Supposing that the existence of a conspiracy may in the first instance be proved, without showing the participation or knowledge of the defendants, it is still a question whether the declarations of some of the persons engaged in the conspiracy may be given in evidence against others, in order to prove its existence; and upon principle such evidence appears to be inadmissible. The opinions of the judges upon this question have been at variance. In Hardy's case, which was an indictment for high treason, in conspiring the death of the king, it was proposed to read a letter written by Martin, in London, and addressed, but not sent, to Margarot, in Edinburgh (both being members of the Corresponding Society,) on political subjects calculated to inflame the minds of the people in the north; Eyre, C. J., was of opinion that this letter was not admissible in evidence against any but the party confessing; two of the judges agreed that a bare relation of facts by a conspirator to a stranger, was merely an admission which might affect himself, but which could not affect a co-conspirator, since it was not an act done in the prosecution of that conspiracy; but that in the present instance the writing of a letter by one conspirator, having a relation to the subject of the conspiracy, was admissible, as an act to show the nature and tendency of the conspiracy alleged, and which therefore might be proved as the foundation for affecting the prisoner with a share of the conspiracy. Buller, J., was of opinion, that evidence of conversations and declarations by parties to a conspiracy, was in general, and of necessity, evidence to prove the existence of the combination. Grose, J. was of the same opinion; but added, that he considered the writing as an act which showed the extent of the plan. Hardy's case, 25 St. Tr. 1. Mr. Starkie remarks that, upon the last point it is observable that of the five learned judges who gave their opinions, three of them considered the writing of the letter to be an act done; and that three of them declared their opinion that a mere declaration or confession, unconnected with any act, would not have been admissible. 2 Stark. Ev. 236, 2d ed.
In the same case it was proposed to read a letter written by Thelwall, another conspirator, to a private friend. Three of the judges were of opinion that the evidence was inadmissible, since it was nothing more than a declaration, or mere recital of a fact, and did not amount to any transaction done in the course of the plot for its furtherance; it was a sort of confession by Thelwall, and not like *an act done by him, [*376 ] as in carrying papers and delivering them to a printer, which would be a part of the transaction. Two of the judges were of opinion that the evidence was admissible, on the ground that every thing said, and a fortiori every thing done by the conspirators, was evidence to show what the design was.
The law on this subject is thus stated by Mr. Starkie. It seems that mere detached declarations and confessions of persons not defendants, not made in the prosecution of the object of the conspiracy, are not evidence even to prove the existence of a conspiracy; though consultations for that purpose, and letters written in prosecution of the design, even if not sent, are admissible. The existence of a conspiracy is a fact, and the declaration of a stranger is but hearsay, unsanctioned by either of the two great tests of truth. The mere assertion of a stranger, that a conspiracy existed amongst others, to which he was not a party, would clearly be inad
le; and although the person making the assertion confessed that he party to it, this, on principles fully established, would not make the ion evidence of the fact against strangers. 2 Stark. Ev. 235. And this doctrine has been recognized by Mr. Serjeant Russell. 2 Russell, 572. See also Murphy's case, ante, p. 374.
Proof of acts, &c. done by other conspirators.] The cases in which, after the existence of a conspiracy is established, and the particular defendants have been proved to have been parties to it, the acts or declarations of other conspirators may be given in evidence against them, have already been considered (vide ante, p. 76 to p. 80) (1). It seems to make no difference as to the admissibility of this evidence, whether the other conspirators be indicted or not, or tried or not; for the making them codefendants would give no additional strength to their declarations as against others. The principle upon which they are admissible at all is, that the acts and declarations are those of persons united in one common design, a principle wholly unaffected by the consideration of their being jointly indicted. Neither does it appear to be material what the nature of the conspiracy is, provided the offence involve a conspiracy. Thus, upon an indictment for murder, if it appear that others, together with the prisoner, conspired to commit the crime, the act of one, done in pursuance of that intention, will be evidence against the rest. 2 Stark. Ev. 237, 2d ed.; see 6 T. R. 528; 11 East, 584.
The letters of one of the defendants to another have been, under certain circumstances, admitted as evidence for the former, with the view of showing that he was the dupe of the latter, and not a participator in the fraud. Whitehead's case, 1 Dow. and Ry. N. P. 61 (a).
Proof of the means used.] Where the act itself, which is the object of the conspiracy, is illegal, it is not necessary to state or prove the means agreed upon or pursued to effect it. 2 Russell, 568; Eccles's case, 1 [*377] Leach, 274. But, where the indictment charged the *defendants with conspiring "to cheat and defraud the lawful creditors of W. F.," Lord Tenterden thought it too general, in not stating what was intended to be done, or the persons to be defrauded. Fowle's case, 4 C. & P. 592 (b); but see De Berenger's case, 3 M. and S. 67. So where the indictment charged the defendants with a conspiracy "to cheat and defraud the said H. B. of the fruits and advantages" of a verdict, Lord Denman, C. J., held it bad, as being too general. Richardson's case, 1 Moo. and R. 402.
Where the indictment charged the defendants with conspiring, by divers false pretences and subtle means and devices, to obtain from A. divers large sums of money, and to cheat and defraud him thereof, it was held, that the gist of the offence being the conspiracy, it was quite sufficient only to state that fact and its object, and that it was not necessary to set out the specific pretences, Bayley, J., said, that when parties had once agreed to cheat a particular person of his monies, although they might not then have fixed on any means for the purpose, the offence of conspiracy was complete. Gill's case, 2 Barn. and Ald. 204. But when
(1) Collins v. The Commonwealth, 3 S. and R. 220.
the act only becomes illegal from the means used to effect it, the illegality must be explained by proper statements, and established by proof, as in the cases already referred to of conspiracies to marry paupers. 2 Russell, 569, ante, p. 367 (1).
An indictment charged in the first count, that the defendants unlawfully conspired to defraud divers persons, who should bargain with them for the sale of merchandise, of great quantities of such merchandise, without paying for the same, with intent to obtain to themselves money and other profit. The second count charged that two of the defendants, being in partnership in trade, and being indebted to divers persons, unlawfully conspired to defraud the said creditors of payment of their debts, and that they and the other defendant, in pursuance of the said conspirac, falsley and wickedly made a fraudulent deed of bargain and sale, of the stock in trade of the partnership for fraudulent consideration, with intent thereby to obtain to themselves money and other emoluments, to the great damage of the said creditors. Held; 1. That the first count was not bad for omitting to state the names of the persons intended to be defrauded, as it could not be known who might fall into the snare; but that the count was bad for not showing by what means they were to be defrauded. 2. That the second count was bad for not alleging facts to show in what manner the deed of sale was fraudulent. Peck v. The Queen, 1 Perry and D. 508.
The defendants A. and B. were indicted for conspiring to extort money from the prosecutor, by charging him with forging a certain check for £178; the indictment set forth a letter from one of the conspirators to the prosecutor, referring to the check, and conversations were proved relating to it. Such a document was, in fact, in existence, but it was not produced by the prosecutor at the trial, and such production was held to be unnecessary; for it might have been that the existence of such a check was altogether a fabrication. Ford's case, 1 Nev. and M. 777 (a).
*Proof of the means used-cumulative instances.] Upon [*378 ] an indictment charging the defendants with conspiring to cause themselves to be believed persons of considerable property, for the purpose of defrauding tradesmen, evidence was given of their having hired a house in a fashionable street, and represented themselves to the tradesmen employed to furnish it, as persons of large fortune. A witness was then called to prove, that at a different time they had made a similar representation to another tradesman. This evidence was objected to, on the ground that the prosecutor could not prove various acts of this kind, but was bound to select and confine himself to one. Lord Ellenborough, however, said, "This is an indictment for a conspiracy to carry on the business of common cheats, and cumulative instances are necessary to prove the offence." Roberts's case, 1 Campb. 399.
Proof of the object of the conspiracy.] The object of the conspiracy must be proved as laid in the indictment. An indictment against A. B. C. and D. charged that they conspired together to obtain "viz. to the
(1) Though usual to do so, it is not necessary to set forth the overt act. People v. Mather, 4 Wend. 229.
(a) Eng. Com. L. Rep. xxviii. 332.
use of them the said A. B. and C. and certain other persons to the jurors unknown," a sum of money for procuring an appointment under government. It appeared that D., although the money was lodged in his hands to be paid to A. and B. when the appointment was procured, did not know that C. was to have any part of it, or was at all implicated in the transaction. Lord Ellenborough said, "The question is, whether the conspiracy, as actually laid, be proved by the evidence. I think it is not as to D. He is charged with conspiring to procure the appointment through the medium of C., of whose existence, for aught that appears, he was utterly ignorant. Where a conspiracy is charged, it must be charged truly." Pollman's case, 2 Campb. 233.
Particulars of the conspiracy.] Where the counts of an indictment for conspiracy were framed in a general form, Littledale, J., (after consulting several other judges) ordered the prosecutor to furnish the defendants with a particular of the charges, and that the particular should give the same information to the defendants that would be given by a special count. But the learned judge refused to compel the prosecutor to state in his particular the specific acts with which the defendants were charged, and the times and places at which those acts were alleged to have occurred. Hamilton's case, 7 C. and P. 448 (a).
Cross-examination of witnesses.] Where, on an indictment for a conspiracy against A., B. and C., C. only called a witness, and examined him as to a conversation between himself and A., it was objected that the counsel for the prosecution had not a right to cross-examine him as to other conversations between C. and A.; but Abbott, J., said that he could not prevent him from going into all the conversations which might affect C., though it might be a matter for future consideration, whether A.'s [*379] counsel would, after *such evidence, have a right to address the jury upon it. The witness was accordingly examined as to several conversations between A. and C., which principally affected the former. Kroehl's case, 2 Stark. N. P. C. 343 (b).
Venue.] The gist of the offence in conspiracy, being the act of conspiring together, and not the act done in pursuance of such combination, the venue in principle ought to be laid in the county in which the conspiring took place, and not where, in the result, the conspiracy was put into execution. Best's case, 1 Salk. 174; 2 Russell, 569. But it has been said, by the Court of King's Bench, that there seems to be no reason why the crime of conspiracy, amounting only to a misdemeanor, ought not to be tried wherever one distinct overt act of conspiracy was in fact committed, as well as the crime of high treason, in compassing and imagining the death of the king, or in conspiring to levy war. Brisac's case, 4 East, 171. So where the conspiracy, as against all the defendants, having been proved, by showing a community of criminal purpose, and by the joint co-operation of the defendants in forwarding the objects of it in different counties and places, the locality required for the purpose of trial was held to be satisfied by overt acts done by some of the defendants in
(a) Eng. Com. L. Rep. xxxii. 579. (6) Id. iii. 375.