cutrix, was indicted for stealing six shillings. The son of the prosecutrix suspecting the prisoner, had marked a quantity of money, and put it into the till, and the prisoner was watched by him. On the first examination of the till it contained 11s. 6d. The prosecutrix's son having received another shilling from a customer, put it into the till; and another person having paid a shilling to the prisoner, he was observed to go to the till, to put in his hand and to withdraw it clenched. He then left the counter, and was seen to raise his hand clenched to his waistcoat pocket. The prosecutrix was proceeding to prove other acts of the prisoner, in going to the till and taking money, when it was objected that this would be to prove several felonies. The objection being overruled, the prosecutrix's son proved, that upon each of the several inspections of the till, after the prisoner had opened it, he found a smaller sum than ought to have been there. The prisoner having been convicted, the Court of King's Bench, on an application for staying the judgment, were of opinion that it was in the discretion of the judge to confine the prosecutor to the proof of one felony, or to allow him to give evidence of other acts which were all part of one entire transaction. Ellis's case, 6 B. and C. 145 (a). Similar evidence was lately admitted in a case of robbery. The prisoners came with a mob to the prosecutor's house, and one of the mob went up to the prosecutor, and civilly, and as he believed with a good intention, advised him to give them something to get rid of them, which he did. To show that this was not bona fide advice to the prosecutor, but in reality a mode of robbing him, it was proposed to give evidence of other demands of money made by the same mob at other houses, at different periods of the same day, when some of the prisoners were present. Parke, J., having conferred with Vaughan, B., and Alderson, J., said, "We are of opinion, that what was done by the mob, before and after the particular transaction at the prosecutor's house, but in the course of the same day, and when any of the prisoners were present, may be given in evidence." He afterwards stated that the judges (it was a special commission) had communicated with Lord Tenterden, who concurred with them in this opinion. Winkworth's case, 4 C. & P. 444 (b). See also Mogg's case, 4 C. and P. 364 (c) (1). So where, upon an indictment for felony, a matter which was the subject of another indictment for felony was essential to the chain of facts necessary to make out the case, both felonies being parts of one transaction, Patteson, J., held that the subject-matter of the other in- [ *76] dictment might be given in evidence without abandoning such other indictment. Salisbury's case, 5 C. and P. 155 (d). So upon an indictment for stabbing, in order to identify the instrument, evidence may be adduced of the shape of a wound given to another person by the prisoner at the same time, although such wound be the subject of another indictment. Per Gaselee, J., and Park, J., Fursey's case, 6 C. and P. 81 (e). So

(1) On an indictment for a conspiracy in inveigling a young girl from her mother's house, and reciting the marriage ceremony between her and one of the defendants, a subsequent carrying her off, with force and threats, after she had been relieved on habeas corpus, was al lowed to be given in evidence. Commonwealth v. Hevice and al., 2 Yeates, 114.

On an indictment against a man for killing his wife, the prosecutor has been allowed to prove an adulterous intercourse between the prisoner and another woman, not to prove the corpus delicti, but to repel the presumption of innocence arising from the conjugal relation. The State v. Watkins, 9 Conn. 47.

(a) Eng. Com. L. Rep. xiii. 123.

(b) Id. xix. 465. (c) Id. xix. 42). (d) ld. xxiv. 253. (e) Id. xxv. 293.

where there were three several indictments against the prisoner for burning three ricks which had been set on fire one immediately after the other, and the prisoner was tried on the third indictment, Gurney, B., allowed an accomplice to give evidence of the setting fire to all the three ricks, as constituting part of the same transaction. Long's case, 6 C. and P. 179 (a).

On a trial where Spencer's case was referred to, Patteson, J. said, "It is the opinion of the judges that evidence of any confession is receivable, unless there has been some inducement held out by some person in authority." Sarah Taylor's case, 8 C. and P. 733 (b). In the last-mentioned case the prosecutor's house had been set on fire, and the prisoner, a female servant, was sent for into the parlor, where a person not in authority, in the presence of the wife of the prosecutor held out an inducement to the prisoner to confess, the wife expressing a dissent. The learned judge said that the inducement must be taken as if held out by the prosecutor's wife, who was a person in authority over the prisoner, and that therefore the evidence was inadmissible.

Cases where evidence of other transactions is admissible, as referable to the point in issue-acts and declarations of conspirators.] Not only, as in the cases before mentioned, may the acts and declarations of the prisoner himself on former occasions, be admitted when referable to the point in issue, but also the acts and declarations of other persons with whom he has conspired, may, if referable to the issue, be given in evidence against him.

In prosecutions for conspiracies, it is an established rule, that where several persons are proved to have combined together for the same illegal purpose, any act done by one of the party in pursuance of the original concerted plan, and with reference to the common object, is in the contemplation of law as well as in sound reason, the act of the whole party; and therefore the proof of the act will be evidence against any of the others who were engaged in the same general conspiracy, without regard to the question, whether the prisoner is proved to have been concerned in the particular transaction. Phill. Ev. 210, 8th ed. (1) Thus on the trial of an indictment against several persons for a conspiracy, in unlawfully assembling for the purpose of exciting discontent or disaffection, as the material points for the consideration of the jury are, the general character and intention of the assembly, and the particular case of the defendant as connected with that general character, it is relevant to prove, on the part of the prosecution, that bodies of men came from different parts of the country to attend the meeting, arranged and organized in the same manner and acting in concert. It is relevant also to show, that early on the day of the meeting, on a spot at some distance from the place of meeting, (from which spot bodies of men came afterwards to the place of meeting) a great number of persons, so organized, had assembled, and had there

(1) Commonwealth v. Crowninshield, 10 Pick. 497. American Fire Co. v. The U. States, 2 Peters, 364. Snyder v. Laframboise, 1 Bree. 269. Commonwealth v. Eberle, 3 S. and R. 9. Wilbur . Strickland, 1 Rawle, 458. Reitenback v. Reitenback, Id. 362. Martin v. The Commonwealth, 2 Leigh, 745. Gardner v. Preston, 2 Day's Cases, 205. Collins . The Commonwealth, 3 S. and R. 220. Ex parte Bollman and Swartwout, 4 Cranch, 75. Livermore v. Herschell and al., 3 Pick. 33. Rogers v. Hall, 4 Watts, 359. Gibbs v. Nedy, 7 Watts, 305. Colt and al. v. Eves, 12 Conn. 243.

(a) Eng. Com. L. Rep. xxv. 343. (b) Id. xxxiv. 608.

conducted themselves in a riotous, disorderly, or seditious manner. Hunt's case, 3 B. and A. 573, 574 (a).

Upon the same principle, on the trial of a similar indictment, it is relevant to produce in evidence, resolutions proposed by one of the defendants at a large assembly in another part of the country, for the same professed object and purpose as were avowed at the meeting in question; and also, that the defendant acted at both meetings as president or [*77 ] chairman; for in a question of intention, it is most clearly relevant to show, against that individual, that at a similar meeting, held for an object professedly similar, such matters had passed under bis immediate auspices. Hunt's case, 3 B. and A. 577 (b).

The same rule is acted upon in cases of treason. If several persons agree to levy war, some in one place and some in another, and one party do actually appear in arms, this is a levying of war by all, as well those who were not in arms as those who were, if it were done in pursuance of the original concert; for those who made the attempt were emboldened by the confidence inspired by the general concert, and, therefore, these particular acts are in justice imputable to all the rest. 1 East, P. C. 97; Kel. 19. 3 Inst. 9. "But, suppose," says Mr. East, "a conspiracy to levy war, and a plan of operations settled, and those to whom the execution of them is committed afterwards see occasion to vary in certain particulars from the original plan, which is accordingly done, unknown to some of the conspirators; yet I conceive," he adds, "that if the new measures were conducive to the same end, and that in substance the original conspiracy were pursued, they all remain responsible for each other's acts." 1 East, P. C. 98. Vide post, title Accessories and Murder.

Letters and writings also of one of several conspirators are frequently offered in evidence against others. In Stone's case, (for high treason) evidence having been given to connect the prisoner with one Jackson, and to show that they were engaged in a conspiracy to transmit to the French an account of the disposition of the English, in case of an invasion, the Secretary of State was called to prove that a letter of Jackson's, containing treasonable information of the state of this country, had been transmitted to him from abroad. The evidence was objected to, as the letter was not proved to have come to the prisoner's hands. But the court admitted it, on the authority of Tooke's case and Hardy's case, the acts of Jackson done in pursuance of the conspiracy, being, in contemplation of law, the acts of the prisoner. Stone's case, 1 East, P. C. 99; 6 T. R. 527; 25 How. St. Tr. 1311, S. C.

Papers found in the custody of the prisoner are admissible in evidence, without any proof of the handwriting being his. 1 East, P. C. 119; Layer's case, 6 St. Tr. 279.

The letters or writings must appear to have been written in furtherance of the conspiracy, and not as a mere relation of a past transaction. On the trial of Hardy, a letter from Thelwall to a third person not connected with the conspiracy, was offered in evidence, containing seditious songs, which the letter stated to have been composed and sung at the anniversary meeting of the London Corresponding Society, of which the prisoner and the writer were proved to be members. It being objected that the letter was merely a relation by the writer, the majority of the court decid

(a) Eng. Com. L. Rep. v. 381. (b) Id. v. 381.

ed against the admissibility of the letter. They considered the letter not as an act done in prosecution of the plot, but as a mere narrative of what [*78] had passed. "Correspondence," said Eyre, C. J., " very often makes a part of the transaction, and in that case the correspondence of one who is a party to the conspiracy would undoubtedly be evidence, that is, a correspondence in furtherance of the plot; but a correspondence of a private nature, a mere relation of what has been done, appears a different thing." Hardy's case, 24 How. St. Tr. 452, 475.

It is not necessary, in order to render the letter of one of several conspirators evidence, that it should ever have reached the hands of the person to whom it was addressed. Thus, in Stone's case, ante, p. 77, the letter which was read in evidence had been intercepted; and in Hardy's case, a letter written by the chairman of a meeting in London, to a delegate sent by that meeting into Holland, though never received by that person, was allowed to be read in evidence, on the ground that it was a letter written by one conspirator to another conspirator, and having relation to the conspiracy, the tendency and nature of which it contributed to show. Hardy's case, 24 How. St. Tr. 453, 477.

It is in consequence of the distinction between writings or declarations, which are acts or part of the res gestæ, and such as are in the nature of subsequent statements, that the admissibility of writings often depend on the time when they are proved to have been in the possession of co-conspirators; whether it were before or after the time of the prisoner's apprehension. Phill. Ev. 214, 8th ed. Where, after the prisoners had been apprehended, several letters directed to them were intercepted at the post office, and were attempted to be given in evidence against them at the trial, the court said, that as they had never been in the custody of the prisoners, or any way adopted by them, they were inadmissible. Hevey's case, 1 Leach, 235. In Hardy's case it was proposed to give in evidence certain writings found subsequently to the apprehension of the prisoner, in the possession of Martin and Thelwall, persons charged with the same conspiracy; but it was held that as there was no evidence to show the existence of the writings previous to the prisoner's apprehension, or that he was a party to them, they could not be read. Hardy's case, 24 How. St. Tr. 452. But if there be a presumption of the previous existence of the writing, it will then be admissible. On the trial of Watson for high treason, proof was admitted of papers found in the lodgings of Watson the younger, who had been engaged in the conspiracy, after the apprehension of the prisoner, and a witness stated that similar papers had been shown to him. Hardy's case having been cited by the counsel for the prisoner, the court were clearly of opinion that these writings were admissible, since in the first place, there was a strong presumption that the papers found in the room were there previously to the apprehension of the prisoner, a circumstance which very materially distinguished this case from that of Hardy, where the papers were found in the possession of persons after his apprehension; which persons might have acquired the possession after his apprehension; whereas, in the present case, the room in which the papers were found had been locked up by one of the conspirators; and secondly [ *79] because these papers had all a reference to the design and *plan of the conspiracy as detailed in evidence. Watson's case, 2 Stark.

140 (a).

(a) Eng. Com. L. Rep. iii. 285.

In the same case evidence was given by Castles, an accomplice, that a quantity of pikes, made in furtherance of the conspiracy, had been carried to the lodgings of the younger Watson, and that this was communicated to the elder Watson. The latter was apprehended on the 2d December, and the pikes were not discovered until the 5th of March. It was objected that the evidence of the discovery of the pikes being after the prisoner's apprehension, ought not to be received; and Hardy's case was cited. But the court was clearly of opinion that it was adinissible. In the case cited, what was offered to be produced in evidence did not exist before the apprehension, but here the thing not only existed, but had been carried to the house by two of those who had been stated to be parties to the transaction. Watson's case, 2 Stark. 137 (a).

Where letters and writings are offered in evidence in these cases, it must appear that they are connected with the objects of the conspiracy, and that they are not merely the speculative opinions of the party by whom they were written. But if they be so connected, then though they may never have been published, they are admissible in evidence. In Sidney's case, 9 How. St. Tr. 817, writings composed several years before the offence with which the prisoner was charged, and never published, were allowed to be read in evidence against him, a course clearly illegal; "but I freely admit," says Mr. Justice Foster, "that had the papers found in Mr. Sidney's closet, been plainly relative to other treasonable pratices charged in the indictment, they might have been read in evidence against him, though not published." Foster, 198; 4 Black. Com. 80; 1 East, P. C. 119. In Watson's case, a paper containing questions and answers, found in the lodgings of the younger Watson, and tending to corrupt the soldiers, was offered in evidence; but the reception of this evidence was objected to, and Sidney's case was cited. Lord Ellenborough observed, that where a doubt existed, his inclination was to reject a paper offered against a defendant in such a case. That if there had been proof of a design to corrupt the soldiers by written papers circulated amongst them, this would have been evidence of a paper to effectuate that purpose; but that the contents of the paper appeared to be of too abstract a nature, and too little connected with any of the objects of the conspiracy, then in evidence. Abbott, J., distinguished Sidney's case. The paper there was not only then an unpublished paper, but appeared to have been composed several years before the crime charged to have been committed. He entertained considerable doubt upon the present question, but his opinion was that the paper was too abstract in its terms to be admissible. Watson's case, 2 Stark. 145 (b).

Not only are the acts, and the written letters and papers, of one of several persons engaged in the same conspiracy, evidence against the others, if done or written in furtherance of the common purpose, but his verbal declarations are equally admissible under similar restrictions. Any declarations made by one of the party in pursuance of the common object of the conspiracy, are evidence against the rest of the party, who are [*80] as much responsible for all that has been said or done by their associates in carrying into effect the concerted plan, as if it had been pronounced by their own voice, or executed by their own hand. These declarations are of the nature of acts; they are in reality, acts done by the party, and generally they are far more mischievous than acts which consist only in

(a) Eng. Com. L. Rep. iii. 284. (b) Id. iii. 286.