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conducted themselves in a riotous, disorderly, or seditious manner. llunt'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 siinilar meeting, held for an object professedly similar, such matters had passed under bis immediate auspices. Hunt's case, 3 B. and A. 577 (6). 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.” i 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 bave 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 gesta, 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 (6).
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. (6) Id. iii. 286.
corporal agency. All consultations therefore carried on by one conspirator, relative to the general design, and all conversations in his presence, are evidence against another conspirator, though absent. 1 Phill. Ev. 95, 7th ed. The effect of such evidence must depend on a variety of circumstances, such as whether the party was attending to the conversation, and whether he approved or disapproved; still such conversations are admissible in evidence. Per Eyre, C. J., Hardy's case, 24 How. St. Tr. 704. In Lord George Gordon's case the cry of the mob, being part of the transaction, was held to be admissible against the prisoner. 21 How. St. Tr. 535. And upon the same principle, the expressions of the mob in the Sacheverell riots, that they designed to pull down the meeting-houses, were admitted in evidence. Damaree's case, 15 How. St. T. 552.
Cases where evidence of other transactions is admissible, as referable to the point in issue-admissible for prisoner as well as for prosecutión.] Evidence of other acts and declarations of the prisoner, as it is admissible for the prosecution, under the restrictions above stated, so it is also admissible on behalf of the prisoner. On a charge of murder, for instance, expressions of good will, and acts of kindness on the part of the prisoner towards the deceased, are always considered important evidence, as showing what was bis general disposition towards the deceased ; from which the jury may be led to conclude that his intention could not have been what the charge imputes. Phill. Ev. 491, 8th ed. So antecedent menaces may be given in evidence, to show the prisoner's malice against the deceased, see post, p. 88. So on the trial of an information against the proprietor of a newspaper, for a seditious libel, Lord Ellenborough, ruled that the defendant bad a right to have any parts of the same paper, upon the same topic with the libel, or fairly connected with it, read, although locally disjoined from the libel. Passages, his lordship observed, of the same paper, tending to show the intention and mind of the defendant with respect to the specific paragraph, must be very material for the consideration of the jury. Lambert's case, 2 Campb. 398. In a case of arson, where it was opened by the counsel for the prosecution that evidence would be given of expressions of ill-will used by the prisoner to the prosecutor, Williams, J., held that the prisoner's counsel might cross-examine the prosecutor, to show that other persons had also used expressions of ill-will towards him. Stallard's case, 7 C. and P. 263 (a).
As, in trials for conspiracies, whatever the prisoner may have done or said, at any meeting alleged to be held in pursuance of the conspiracy, is admissible in evidence on the part of the prosecution against him ; so on the other hand, any other part of his conduct at the same meetings, [ *81 ] will be allowed to be proved on his behalf; for *the intention and design of a party at a particular time are best explained by a complete view of every part of his conduct at that time, and not merely from the proof of a single and insulated act or declaration. Phill. Ev. 499, 8th ed. On the trial of an indictment for a conspiracy to overthrow the government, evidence was given to show that the conspiracy was brought into overt act, at meetings, in the presence of the prisoner Walker. His
(a) Eng. Com. L. Rep. xxxii. 504
counsel was allowed to ask, whether at those times he had heard Walker utter any word inconsistent with the duty of a good subject. He was also allowed to inquire into the general declarations of the prisoner at the meetings, and whether the witness had heard him say any thing that had a tendency to disturb the peace. Ibid. 23 How. St. T. 1131. 31 Id. 43.
The acts and declarations of a prisoner, given in evidence in his favor, ought to be connected both in point of subject matter, and of time, with the acts or declarations proved against him. See Phill. Ev. 500, 8th cd. In the two following cases, however, great latitude was allowed on trials for high treason. Where the overt act charged was, that the prisoner, to compass the king's death, conspired with others to call a convention of the people, &c.; the prisoner's counsel was allowed to ask the witness whether, before the time of the convention, he had ever heard from the prisoner what his objects were, and whether he had at all mixed himself in the business. Hardy's case, 24 How. St. Tr. 1097. So in Horne Tooke's case, 1 East, P. C. 61; 25 How. St. Tr. 545, evidence having been given on the part of the crown, of several publications containing republican doctrines and opinions, which had been distributed by the prisoner during the period assigned in the indictment (for high treason) for the existence of the conspiracy the prisoner offered, to put in a book, written by him, expressive of his veneration for the king and constitution ; this was objected to, as being antecedent to the period of the conspiracy, and not relating to the particular transaction. After argument, the book was admitted, on the ground that it had reference to the proof given in support of the charge, to rebut the idea, that a reform in parliament was a pretence made by the prisoner, and that his real object was to overturn the government. The soundness of this decision has been doubted by Lord Ellenborough, who said, that if the point should ever occur before him, it would become his duty seriously to consider whether such evidence should be admitted. Lambert's case, 2 Campb. 409. In the following cases a more strict limit was placed to the investigation of the acts and declarations of a prisoner. On the trial of Lord George Gordon, a witness was asked by his counsel, on cross-examination, as to a statement made by the prisoner on the night before the meeting, in St. George's Fields, and with respect to which, such evidence had been produced. The question was overruled, and Lord Mansfield said, that as the counsel for the crown had given evidence of what the prisoner said at the meeting, on the 29th of May, the counsel for the prisoner might show the whole connection of what the prisoner said, *be- [ *82 ] sides, at that meeting ; but that they could not go into evidence of what he said on an antecedent day. 21 How. St. Tr. 542. So in Hanson's case, on the charge of promoting a riot, the prisoner's counsel was not allowed to prove what he had said privately to a friend, previously to his going to the place of riot, respecting his motives in going thither. 31 How. St. Tr. 1281.
On the trial of an indictment for a conspiracy to defraud, the written correspondence of the defendant, with another of the conspirators relating to a transaction in question was allowed to be read, in order to show that the defendant was deceived by his correspondent, and was not a participator in the fraud. Per Best, J. “ I think them admissible; for what the parties say at the time is evidence to show how they acted.” Whitehead's case, i B. and P. 67 (a).
(a) Eng. Com. L. Rep. xi. 316.