be a corrupt intent to contravene either a statute or a settled provision of the common law.1 3. To falsely accuse another of Crime, or use other Improper Means to injure his Reputation, or extort Money from him. Conspiracy to § 1376. A conspiracy to falsely charge a man with any indictable offence has frequently been held the subject of indictment; 2 but it is not an indictable offence for two or more persons to consult and agree to prosecute a person who is guilty, or against whom there are reasonable grounds of suspicion.3 falsely prosecute is indictable. § 1377. Even the legal conviction of an innocent man is no Conviction bar to an indictment against those who by such combination procured the conviction. And an indictment was sustained against three defendants for a conspiracy in com no bar. parties to that bargain were two individuals, and their compact controlled two votes; the parties to this bargain were numerous, and their compact controlled many votes; and every reflecting man must see that a conspiracy becomes more criminal the more persons it embraces, and the more power it wields. The parties to that bargain made it without reference to the qualifications of the candidates;' the parties to this bargain entered into it with an open declaration that one of the candidates was distrusted by one party, and the person who was to be voted for by the other party was not even selected, nothing being known, except that he was not to act on the principles which one of the parties who were to vote for him had long professed to hold dear. The subjects of the bargain in that case were a county clerk and a county commissioner; the subjects of this bargain were the governor of Massachusetts and one of its senators in the Congress of the United States. And finally, in that case, it does not appear that the officers voted for by the crim inals were actually elected; while in this case it is known that this corrupt agreement made one man governor, and caused another to be declared elected a senator in Congress." Life and Writings of B. R. Curtis, vol. i. pp. 143-145. 1 People v. Powell, 63 N. Y. 88. 2 Foster, 130; 1 Hawk. c. 72, s. 2; R. v. M'Daniel, 1 Leach, 45; R. v. Spragg, 2 Burr. 993; R. v. Best, 2 L. Raym. 1167; Salk. 174; Com. v. Tibbetts, 2 Mass. 536; Elkin v. People, 58 N. Y. 177; State v. Buchanan, 5 Har. & J. 317; Johnson v. State, 2 Dutch. 313; Slomer v. People, 25 Ill. 70. As to extorting hush money see R. v. Hollingberry, infra, § 1379. That a conspiracy to slander is indictable see State v. Hickling, S. C. N. Jer. 1879. Infra, § 1379. bining to arrest one C. C., a resident of the county of Philadelphia, on the false charge of deserting the army of the United States, in the year 1847; and after arresting him, in forcibly carrying him to New York, for the purpose of obtaining the reward of $30, which had been offered by the government for the arrest and safe delivery of a soldier who had deserted by that name.1 It has been held a conspiracy to combine to induce a tavernkeeper to furnish beer on Sunday, and thus to violate the Sunday liquor law.2 Indict ment need imputed not detail crime. § 1378. When the object of the combination is to indict the prosecutor, it is not necessary to show with what particular offence it was intended to charge him, but it will suffice to say that they conspired to indict him of a crime punishable by the laws of the land, and then it may be alleged that they, according to the conspiracy, did falsely indict him. It is not necessary to aver that the man is innocent of the offence; for he will be presumed to be innocent until the contrary appear.5 § 1379. A conspiracy to extort money by charging the prosecutor with an offence or scandal is indictable, and this whether the offence is criminal or not;7 or whether the person charged is guilty or not.8 Conspiracy money is to extort indicta ble. Even when there is no extortion, and no criminal offence charged, it is indictable to conspire to degrade the So to decharacter of another by charging him with disgrace 1 Ibid. A count in an indictment for conspiracy, averring that defendants corruptly charged one with being the father of a child to be born bastard, and did various acts to effect the object of the conspiracy, is good. Johnson v. State, 2 Dutch. 313. 2 Com. v. Leeds, 9 Phila. 569. R. v. Spragg, 2 Burr. 993. 4 R. v. Kinnersley, 1 Str. 193; Johnson v. State, 2 Dutch. 313. fame. guilty, it is inadmissible to prove that the defendants prosecuted other persons who were not guilty, no system being set up. State v. Walker, 32 Me. 195. • R. v. Hollingberry, 6 D. & R. 345; 4 B. & C. 329; Com. v. Wood, 7 Bost. Law Rep. 58; Whar. Prec. 58. 7 R. v. Rispal, 1 W. Bl. 368; 3 Burr. 1320. 8 R. v. Hollingberry, supra. In R. v. Best, 1 Salk. 174; 2 Ld. this case it was held that the means Raym. 1167. On an indictment for a conspiracy to prosecute a person who was not of extortion need not be stated. See, as to threats to extort money, infra, § 1664. ful offence.1 And wherever libelling is indictable, an attempt or conspiracy to libel is indictable. So to ob lic justice. 4. Conspiracies to obstruct Justice. § 1380. Any confederation whatever, tending to obstruct the course of justice, is indictable. Thus, a conspiracy by struct pub- certain justices of the peace to certify that a highway was in repair, when they knew it to be otherwise, was held indictable. So, where several persons conspired to procure others to rob one of them, in order, by convicting the robber, to obtain the reward then given by statute in such case, and the party who accordingly committed the robbery was afterwards convicted and actually executed, they were indicted for the conspiracy and convicted. It is indictable to conspire to destroy a will, with a view to defraud the devisee. And the same rule applies where the offence is the suppression or false concoction of testimony to be used in a judicial proceeding. should be V. GENERAL REQUISITES OF INDICTMENT. 1. Executed Conspiracies, and herein of Overt Acts. § 1381. When the conspiracy is executed it is better that the Executed facts should be stated specially, so that not only the conspiracy record may present a graduated case for the sentence so averred. of the court, but also that the case, when it goes to the jury, may not be open to the objection that the grand jury having it in their power, from the examination of the witnesses for the prosecution, to find specially the agency through which the conspirators worked, confined themselves to a general finding of an unexecuted conspiracy. It is not pretended that any of the cases go so far as to prescribe this doctrine, nor is it denied that 1 Gibson, C. J., in Hood v. Palm, 8 Barr, 237; State v. Hickling, supra, § 1376. 2 R. v. Hamp, 6 Cox C. C. 167; State v. Noyes, 25 Vt. 415; State v. De Witt, 2 Hill (S. C.), 282; Com. v. M'Clean. 2 Parsons, 367; State v. Norton, 3 Zabr. 33; State v. McKinstry, 50 Ind. 465. 8 R. v. Mawbey, 6 T. R. 619. 4 R. v. M'Daniel, 1 Leach, 45; Fost. 130. 5 State v. De Witt, 2 Hill (S. C.), 282. 6 Ibid.; R. v. Mawbey, 6 T. R. 619. Supra, §§ 1334 et seq. 7 U. S. v. Cruikshank, 92 U. S. 542; State v. Clary, 64 Me. 369; State v. McKinstry, 50 Ind. 465; Elkin v. People, 28 N. Y. 177. very frequently, especially in the earlier cases, the courts have sustained counts for unexecuted conspiracies (e. g. conspiracies "to cheat by false pretences "), where on the trial it appeared that the supposed naked conspiracy had been fully executed, and had resolved itself into an independent misdemeanor.1 But wherever there has been such execution of the conspiracy, it is prudent to include in the indictment at least one count setting forth specially the overt acts.2 Overt acts sary when conspiracy is per se not neces § 1382. Hence it is usual to set out the overt acts, that is, those acts which may have been done by any one or more of the conspirators, in pursuance of the conspiracy, and in order to effect the common purpose of it; but this is not requisite, if the indictment charge what is in unlawful. itself an unlawful conspiracy. The pleading of the offence is complete in the conspiracy, and the overt acts, though it is proper to set them forth, may be either regarded as matters of aggravation, or discharged as surplusage. As has already been seen, in an indictment for conspiracy at common law to effect objects prohibited by a statute, it is enough to follow the words of the statute, without giving overt acts.5 1 See Alderman v. People, 4 Mich. 414. This is still the law in England (R. v. Esdaile, 1 F. & F. 213; R. v. Brown, 7 Cox C. C. 442), subject to the defendant's right to call for a bill of particulars. And compare supra, § 1348, note. 2 See supra, § 1348. 8 R. v. Kinnersley, 1 Str. 193; R. v. Gompertz, 9 Q. B. 824; Sydserff v. R. 11 Q. B. 245; R. v. Seward, 1 Ad. & El. 706; 3 N. & M. 557; R. v. Heymann, L. R. 8 Q. B. 102; 12 Cox C. C. 383; R. v. Gill, 2 B. & Al. 204; U. S. v. Dustin, 2 Bond, 332; State v. Bartlett, 30 Me. 132; State v. Ripley, 31 Me. 386; State v. Noyes, 25 Vt. 415; Com. v. Eastman, 1 Cush. 190; Com. v. Shedd, 7 Cush. 514; March v. People, 7 Barb. 391; Clary v. Com. 4 Barr, 210; Isaacs v. State, 48 Miss. 234; Alderman v. People, 4 Mich. 414; Landringham v. State, 49 Ind. 186. See infra, § 1400. And it is not necessary that the character of the relation between the act and the conspiracy should be detailed in the indictment. U. S. v. Donan, 11 Blatch. 168. See Cole v. People, 84 Ill. 216; State v. Potter, 28 Iowa, 554; State v. Stevens, 30 Iowa, 391, cited infra, § 1384. 4 O'Connell v. R. 11 Cl. & Fin. 155; U. S. v. Ulrici, 3 Dill. 532; State v. Ripley, 31 Me. 386; State v. Bartlett, 30 Me. 132; State v. Noyes, 25 Vt. 415; State v. Straw, 42 N. H. 393; Com. v. Davis, 9 Mass. 415; Com. v. Tibbetts, 2 Mass. 536; Com. v. Eastman, 1 Cush. 189; Collins v. Com. 3 S. & R. 220; State v. Buchanan, 5 Har. & J. 317; State v. Cawood, 2 Stew. 360. 5 R. v. Rowlands, 2 Den. C. C. 364; 9 Eng. L. & Eq. 287; State v. Hewett, 31 Me. 396; State v. Noyes, 25 Vt. 415. Supra, §§ 1345, 1348, 1352. 247 § 1383. How far the overt acts can be taken in to aid the Overt acts charging part is thus discussed by Tindal, C. J:1 useful as "But it was then urged by the learned counsel for explaining the con- the crown that supposing these objections to be well spiracy charge. founded, this defect in the allegation of the conspiracy was cured by referring to the whole of the indictment the part stating the overt acts, as well as that stating the conspiracy; and Rex v. Spragg 2 was cited as authority that the whole ought to be read together. The point decided in that case appears to have been merely this, that in an indictment for a conspiracy, though the conspiracy be insufficiently charged, yet if the rest of the indictment contains a good charge of a misdemeanor, the indictment is good. Lord Mansfield distinguishes between the allegation of the unexecuted conspiracy to prefer an indictment, as to the sufficiency of which he gave no opinion, and that of the actual preferring of the indictment maliciously and without proper cause, which he calls a completed conspiracy actually carried into execution; and this he holds to be clearly sufficient; and no doubt it was so; for, rejecting the averment of the unexecuted conspiracy, the indictment undoubtedly contained a complete description of a common law misdemeanor. "But if we examine the allegations in this indictment, there is no sufficient description of any act, done after the conspiracy, which amounts to a misdemeanor at common law. None of the overt acts are shown by proper averments to be indictable. The obtaining goods, for instance, from certain named individuals upon credit, without any averment of the use of false tokens, is not an indictable misdemeanor; and if it is said that because it is averred to have been done in pursuance of the conspiracy above mentioned, it must be taken to be an equivalent to an averment that the conspiracy was to cheat the named individuals of their goods, the answer is, first, that it does not necessarily follow, because the goods were obtained in pursuance of the conspiracy to cheat some persons, that the conspiracy was to cheat the persons from whom the goods were obtained; they might have been obtained from A. in the execution of an ulterior purpose to cheat B. of his goods; and, secondly, another answer is, that if the averment is to be taken to be equivalent to one that the goods 1 R. v. King, 7 Q. B. 782, 807. 2 2 Burr, 993. |