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le; and although the person making the assertion confessed that he
party to it, this, on principles fully established, would not make the
lion 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, anle, 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 comunit 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 (6); 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, 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 o. 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, i 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 £118; 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 nocessary to set forth the overt act. People o. Mather, 4 Wend. 233.
(e) 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 (6).
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. ii. 375.
the county where the trial was had in prosecution of the conspiracy, Bowes's case, cited in Brisac's case, supra (1).
It has been holden the courts of Quarter Sessions have jurisdiction in cases of conspiracy. Rispal's case, 3 Bur. 1320 ; 1 W. Bl. 368.
OFFENCES RELATING TO (2).
Although larceny cannot be committed of a dead body, no one having a property therein (vide post, title, Larceny,) yet it is an offence against decency to take a dead body with intent to sell or dispose of it for profit ; and such offence is punishable with fine and imprisonment as a misdemeanor. An indictment charged (inter alia) that the prisoner, a certain dead body of a person unknown, lately before deceased, wilfully, unlawfully, and, indecently did take and carry away, with intent to sell and dispose of the same for gain and profit. It being evident that the prisoner had taken the body from some burial-ground, though from what particular place was uncertain, he was found guilty upon this count; and it was considered that this was so clearly an indictable offence, that no case was reserved. Gilles's case, 1 Russell, 415; Russ. and Ry. 366 (n.) (a). So to take up a dead body even for the purposes of *dissection, 1 *380 is an indictable offence. Where, upon an indictment for that offence, it was moved in arrest of judgment, that the act was only one of ecclesi- 3 astical cognizance, and that the silence of the older writers on crown law showed that there was no such offence cognizable in the criminal courts, the court said that common decency required that the practice should be put a stop to; that the offence was cognizable in a criminal court as being highly indecent, and contra bonos mores ; that the purpose of taking up the body for dissection did not make it less an indictable offence, and that as it has been the regular practice at the Old Bailey, in modern times, to try charges of this nature, the circumstance of no writ of error having been brought to reverse any of those judgments, was a proof of the universal opinion of the profession upon this subject. Lynn's case, 2 T. R. 733; 1 Leach, 497 ; see also Cundick's case, Dowl. and Ry. N. P. C. 13 (6)
The burial of the dead is the duty of every parochial priest and minister, and if he neglect or refuse to perform the office, he may, by the express words of canon 86, be suspended by the ordinary for three months; and if any temporal inconvenience arise, as a nuisance, from the neglect of the interment of the dead corpse, he is punishable also by the temporal courts by.indictment or information. Per Abney, J., Andrews v. Cawthorne, Willes, 527 (n.)
To bury the dead body of a person who has died a violent death, be
(1) People o. Mather, 4 Wend. 229. See Comm. v. Loring, 8 Pick. 370.
(2) 1 Eng. C. C. 366. (6) Eng. Com. L. Rep. xvi. 413.
fore the coroner bas sat upon it, is punishable as a misdemeanor, and the coroner ought to be sent for, since he is not bound ex officio to take the inquest without being sent for. Clerk's case, 1 Salk. 377; Anon. 7 Mod. 10. And if a dead body in a prison or other place, upon which an inquest ought to be taken, is interred, or is suffered to lie so long that it putrifies before the coroner has viewed it, the gaoler or township shall be amerced. Hawk. P. C. b. 2, c. 9, s. 23.
The preventing a dead body from being interred has likewise been considered an indictable offence. Thus the master of a work-house, a servant, and another person, were indicted for a conspiracy to prevent the burial of a person who died in a work-house. Young's case, cited 2 T. R. 734.
Provision is made for the interment or dead bodies which may happen to be cast on shore, by the 48 Geo. 3, c. 75.
By the 2 & 3 Wm. 4, c. 75, for regulating schools of anatomy, (s. 10,) professors of anatomy, and the other persons therein described, being duly licensed, are not liable to punishment for having in their possession human bodies according to the provisions of the act.
[ *381 ]
OFFENCES RELATING TO.
381 | Assaulting deer-keepers or their assis
Stealing deer.] The former statutes with regard to the offence of stealing deer, are repealed by the act of 7 and 8 Geo. 4, c. 27, and the law upon the subject is now contained in the 7 and 8 Geo. 4, c. 29.
By the 26th section of that statute, “if any person shall unlawfully and wilfully course, hunt, snare, or carry away, or kill or wound, or attempt to kill or wound, any deer kept or being in the inclosed part of any forest, chace, or purlieu, or in any inclosed land wherein deer shall be usually kept, every such offender shall be guilty of felony, and, being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny ; and if any person shall unlawfully and wilfully course, hunt, snare, or carry away, or kill or wound, or attempt to kill or wound, any deer kept in the uninclosed part of any forest, chace, or purlieu, he shall for every such offence, on conviction thereof before a justice of the peace, forfeit and pay such sum, not exceeding fifty pounds, as to the justice shall seem meet; and if any person, who shall have been previously convicted of any offence relating to deer, for which a pecuniary