CHAPTER XIII. COMMON SCOLD.1 § 199. Form of Indictment. The decisions under this head are too few to enable an author to say absolutely how, in all respects, the indictment should be. But the material parts are, that, at a time and place,2 the defendant was a common scold, to the common nuisance, &c. 4 § 200. "Common Scold."— The words "common scold," though general in meaning, are the proper and technical ones; nor, it appears, need the indictment descend beyond them into the particulars. And in Latin, it was ill, says the report, to say "com munis rixa, a common scold, instead of rixatrix." The phrase "a common and turbulent brawler and sower of discord amongst her quiet and honest neighbors," &c. seems to have been adjudged insufficient; though, in Pennsylvania, a charge that the defendant" openly and publicly, in the public highway, wicked, scandalous, and infamous words did utter in the hearing," &c., not saying "common scold," was held adequate. But perhaps this may be deemed a nuisance of another sort. "Common Nuisance." It is probable that, where the general form of allegation is employed, whatever the rule is in other cases, the conclusion must be "to the common nuisance," &c." §201. Particulars,8- where the indictment is thus general, should be required.9 CHAPTER XIV. CONSPIRACY.1 § 202, 203. Introduction. 204-226. In General of the Indictment. 227-236. The Evidence. 237-239. Questions of Practice. 240-245. How in some Particular Forms of Conspiracy. § 202. Extent and Difficulties of Subject. Conspiracy is the most extended of the offences; connected, indeed, with every form of wrong-doing. And the procedure is in some respects difficult, not only by reason of its variety, but because the offence itself has not always been well understood by judges who have contributed to give shape to the indictment. § 203. How the Chapter divided. We shall consider, I. In General of the Indictment; II. The Evidence; III. Questions of Practice; IV. The Proceedings in some Particular Forms of Conspiracy. I. In General of the Indictment. § 204. What allege and prove. Every crime, we have seen, consists of an evil act and an evil intent.2 And both must be charged in the indictment and proved at the trial. In most offences, either the allegation of the intent is involved in that of the act and requires no separate setting out, or it may be stated very briefly and simply; the real difficulties being in the part of the indictment which concerns the act. But, in conspiracy, all this is reversed. The combining of the two or more minds is the act, and, at common law, is the only act required; though, in some States, something more is made necessary by the statutes. Hence the indictment for conspiracy sets out, — 1 For the law of this subject, see Crim. Law, II. § 169 et seq. 2 Crim. Law, I. § 204–206. Vol. I. § 79, 80, 84, 98 a, 127 et seq., 331, 509, 519, 523, 525, 1052; Reg. v. Aspinall, 2 Q. B. D. 48, 56. 4 Vol. I. § 521; ante, § 74. 5 Vcl. I. § 521-525. 6 Crim. Law, I. § 432; II. § 191, 192. 1. A combining of two or more minds; and this, at common law, is all it need say about the act. The allegation is plain, is the same in all indictments for this offence, and is attended by no difficulties. 2. The purpose of the combination; which is, in the words of the definition, "to do, by concerted action, something unlawful, either as a means or an end." This purpose · namely, the in tent must be set out in terms to show, on the face of the allegation, that the combining to accomplish it is indictable. And herein, the reader perceives, is all the real difficulty in any indictment for conspiracy. § 205. Form of Indictment. The indictment charges, as to the act, that the defendants, at a time and place, to copy from Chitty's form, "unlawfully and wickedly [or, if the conspiracy be malicious, say falsely and maliciously] did conspire, combine, confederate, and agree together." A shorter form, which has been held good, is "unlawfully did conspire and combine together." And not improbably the words "unlawfully" and "combine" may also be omitted, but the author is not aware that the question has been decided. The indictment proceeds, "to," &c. stating the purpose of the conspiracy—that is, the intent which varies with the particular case. Overt Acts. -- But, At common law, it need not go further and specify acts done in pursuance of the combination." § 206. Further of Overt Acts. Such acts are, when the combining of the defendants in a common purpose has been shown, evidence, like their declarations, further establishing the conspiracy and illustrating its character. And if the law gave to these acts no other effect, they should not be set out in the in 1 Crim. Law, II. § 171. 23 Chit. Crim. Law, 1145. To the like effect, Archb. Crim. Pl. & Ev. 19th ed 1005. 3 Rex v. Gill, 2 B. & Ald. 204. 4 But see Reg. v. Aspinall, 2 Q. B. D. 48, 60. See, for various forms, The State v. Mayberry, 48 Maine, 218; The State v. Buchanan, 5 Har. & J. 317; Reg. v. Lewis, 11 Cox C. C. 404; Smith v. People, 25 Ill. 17; Commonwealth v. Putnam, 5 Casey, Pa. 296; Reg. v. Yates, 6 Cox C. C. 441; Rex v. Glennan, 26 Howell St. Tr. 437; Reg. v. Mears, 2 Den. C. C. 79, 4 Cox C. C. 423. 6 Note to Rex v. Johnson, 2 Show. 1, 2; Rex v. Gill, 2 B. & Ald. 204; Rex v. Seward, 1 A. & E. 706; Rex v. Richardson, 1 Moody & R. 402; Reg. v. Kenrick, 5 Q. B. 49, Dav. & M. 208; People v. Richards, 1 Mich. 216, 224; The State v. Straw, 42 N. H. 393; Crim. Law, II. § 192. 7 Vol. I. § 1248, 1249; post, § 228-230; Crim. Law, II. § 192, 193. And see ib. I. § 636; Commonwealth v. Corlies, 8 Philad. 450. dictment; the province of which is to state facts, not evidence.1 But each overt act is likewise a renewal of the conspiracy; 2 hence the pleader may lay it in the indictment if he chooses, and the prosecuting power has the election, at the trial, to prove the allegation or treat it as surplusage.3 Allegation of Overt Acts as curing Defects. -It is plain, therefore, that the mere allegation of overt acts can cure no defects in the other parts of the indictment. There are cases which seem to hold that it may ; but the principle evidently is, that, as all parts of the indictment are to be construed together, if, in this part, any thing appears supplying an omission in the other parts, the court will give it such effect notwithstanding its connection. with matter wholly irrelevant. § 207. The setting out of the Criminal Intent:In General. - The doctrine under this head - that is, as to how to allege, in the indictment, what the conspirators meant to do is so blended with the law of the offence that of necessity it was somewhat discussed in "Criminal Law."6 In principle, it is exactly the same doctrine which was brought to view under the title Attempt, while we were considering how the thing intended to be but not in fact accomplished should be charged; namely, that, as it is not done, it need not, because it cannot, be set out with the particularity of an executed transaction, yet, within practical limits, the allegation should plainly notify the defendant what he is to answer to. For example, Intent to cheat an Individual. (Form). To state the case discussed most frequently, and with conflicting results, the English courts hold it sufficient to say that the defendants conspired, &c. "by divers false pretences and subtle means and devices, to obtain and acquire to themselves, of and from F and G, divers large sums of money, of the respective moneys of the said F and 1 Vol. I. § 514, 516; United States v. Ulrici, 3 Dil. 532. 2 Vol. I. § 61; Commonwealth v. Bartilson, 4 Norris, Pa. 482. 9 Crim. Law, II. § 192, 193; Wright, v. Reg. 14 Q. B. 148; Rex v. Roberts, 1 Camp. 399, 2 Leach, 4th ed. 987, note. 4 Reg. v. King, 7 Q. B. 782; Commonwealth v. Shedd, 7 Cush. 514. 3 Rex v. Spragg, 2 Bur. 993, 999; Wright v. Reg. 14 Q. B. 148. And see Rex v. Rispal, 3 Bur. 1320; Twitchell v. Crim. Law, II. § 199-202. 7 Ante, § 74, 76, 77, 81, 82, 84, 85, 8789, 92; Reg. v. Rowlands, 2 Den. C. C. 364, 5 Cox C. C. 466, 9 Eng. L. & Eq. 287; Brown v. The State, 2 Texas Ap. 115; Reg. v. Aspinall, 2 Q. B. D. 48, 60, 61; The State v. McKinstry, 50 Ind. 465. See Landringham v. The State, 49 Ind. 186. G, and to cheat and defraud them respectively thereof; "1 or, still more briefly, conspired, &c. "to cheat and defraud F. of his goods and chattels; "2 the objection, not deemed valid, being, that the contemplated means for effecting the cheat ought to be set out. § 208. Why sufficient. The sufficiency of this form, brief as it is, rests on the ground that it discloses every element of the offence, and as minutely as the circumstances permit. No indictment is ever required to charge an accused person with what the law has not made a part of the crime; and, when two or more combine to cheat another, they become guilty of a criminal conspiracy, though they have not even considered of the means. Hence, as agreed means are not essential to the offence, it would be a perversion of justice to require the prosecuting power to allege them, to allege, indeed, what may not in fact exist.3 § 209. Analogies-Bill of Particulars. There are other offences which may be charged as briefly as this, and for the same reason, namely, that the brief form covers the whole offence, and in as minute a way as is practicable. Such are simple assault and battery, barratry, common scold, and some others. And where the trial judge deems that further information ought in justice to be given the defendant, he orders a note or bill of the particulars. Again, § 210. Particularizing in Indictment. If the transaction, in things which in law constitute indispensable elements of the offence, properly admits of being individualized, this, in justice to the defendant, should be done in the indictment. Thus, Name of Person to be cheated. - Where an individual is to be cheated, his name, if known, should be alleged." "And," said Tindal, C. J. "if the conspiracy was to cheat indefinite individuals, — as, for instance, those whom they should afterwards deal with, or afterwards fix upon, it ought to have been de 1 Rex v. Gill, 2 B. & Ald. 204. Crim. Law, II. § 200; Sydserff v. Reg. 11 Q. B. 245; s. p. Reg. v. Gompertz, 9 Q. B. 824. And see White v. Reg. 13 Cox C. C. 318, 15 Eng. Rep. 353. Vol. I. § 516; Crim. Law, II. § 198202; Rex v. Gill, 2 B. & Ald. 204, 205; Reg. r. Gompertz, 9 Q. B. 824, 838; The State v. Young, 8 Vroom, 184; United States v. Ulrici, 3 Dil. 532. And see ante, § 75, 78. Ante, § 55-57. 5 Ante, § 98-101. 7 Vol. I. § 614; Rex v. Hamilton, 7 Car. & P. 448; Reg. v. Rycroft, 6 Cox C. C. 76; Reg. v. Stapylton, 8 Cox C. C. 69. 8 Ante, § 81, 207. 9 Ante, § 82, 84, 87, 89, 90; Reg. v Parker, 3 Q. B. 292. |