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mission of the perjury, by inciting, instigating, or persuading the witness to commit the crime. na But the suborner must be aware of intended corruptness on part of the person suborned. Thus though a party, who is charged with subornation of perjury, knew that the testimony of a witness whom he called would be false, yet if he did not know that the witness would wilfully testify to a fact, knowing it to be false, he cannot be convicted of the crime charged. n
§ 2285. Testimony must be material.- In subornation of perjury, the same rules as to materiality of testimony prevail as in perjury.o
Witnesses. - Hence, in trials of this class, a perjured party, who claims to have been suborned, is not sufficient, without corroboration, to procure the conviction of the alleged suborner.p
$ 2286. Scienter. The scienter must be averred; and it must be also averred that the false oath was procured to be used as testimony in a court having jurisdiction.q But it is enough for the indictment to aver that the defendant “ unlawfully, wilfully, wickedly, feloniously, and corruptly did persuade, procure, and suborn” the witness to “commit said perjury in manner and form aforesaid.”. The term “knowingly” is thereby adequately implied. q?
XII. ATTEMPTS TO SUBORN : DISSUADING WITNESS FROM APPEARING.
$ 2287. Although, in order to constitute the technical offence of subornation, the person cited must actually take the false oath, yet it is plain that attempts, though unsuccessful, to induce a witness to give particular testimony, irrespective of the truth, r and to dissuade a witness from attending the trial of a cause, 8 even though such witness had not been served with a subpæna, are indictable.'t
evidence against a person charged (606) Soliciting a witness to disobey a with an offence before the grand subpæna to give evidence before the jury.
grand jury. (603) Inducing a witness to withhold m 1 Hawk. c. 69, s. 10; 2 Rus. on
his evidence as to the execution of a Cr. 6th Am. ed. 596 ; U. S. v. Staats, deed of trust, in Virginia.
8 How. U. S. 41; Com. v. Douglass, 5 (604) Endeavoring to suborn a person Metc. 241 ; R. v. Reilley, 2 Leach, 509.
to give evidence on the trial of an n Com. v. Douglass, 5 Metc. 241 ; action of trespass, issued in the su- Stewart v. State, 22 Ohio St. 477. preme judicial court of Massachu- o Com. v. Smith, 11 Allen, 243. setts.
p People v. Evans, 40 N. Y. 1. So (605) Soliciting a woman to commit in Ohio by act of May, 1869.
perjury, by swearing a child to an 9 U. S. v. Wilcox, 4 Blatch. C. C. innocent person, the attempt being 391 and 393. unsuccessful.
q1 Stewart v. State, 22 Ohio St. 477.
It is not necessary in an indictment for attempting to suborn a witness that the fact, which the defendant attempted to procure the witness to swear to, should be proved specifically; as that fact would only be evidence to show quo animo the bribe was offered, it may be shown by other circumstances. u
In an indictment for spiriting away a witness, it seems not to be important to prove the materiality of his testimony.v
In an indictment against one, for endeavoring to prevent a witness recognized to appear and testify before a grand jury from appearing and testifying, the indictment in the original case, in which the witness was recognized to appear, need not be recited, nor does the guilt or innocence of the respondent depend upon the sufficiency of that indictment, or of the guilt or innocence of the respondent in the first case. w
po 2 Rus. on Cr. 6th Am. ed. 395. u State v. Holding, 1 McCord, 31. Overton, ex parte, 2 Rose, 257.
v State v. Early, 3 Harrington, 562. 3 1 Ibid. 182; State v. Carpenter, w State v. Carpenter, 20 Vt. (5 20 Ver. 9.
Washb.) 9. t State v. Keyes, 8 Ver. 57.
CONSPIRACY AT COMMON LAW.
1. To COMMIT
AN IMMORAL ACT ; Offence to be limited to cases where either
SUCH, FOR INSTANCE, AS THE SEobject or means is unlawful, § 2288.
DUCTION OF A YOUNG WOMAN, OR Where concert is necessary to offence,
TO PRODUCE AN ABORTION, $ 2317. conspiracy does not lie, $ 2289.
2. TO PREJUDICE THE PUBLIC OR THE Must be directed to something which, if
GOVERNMENT GENERALLY ; AS, not interrupted by extraordinary natu
FOR INSTANCE, BY UNDULY ELE ral occurrences, or by collateral human
DEPRESSING THE intervention, will result in an unlawful
PRICES OF WAGES, OF TOLL, OR OF act, $ 2290.
ANY MERCHANTABLE COMMODITY, May be defended by whatever is a defence
OR BY DEFRAUDING THE REVENUE, to attempt, $ 2291.
OR IMPOVERISHING AND DEFRAUDI. CONSPIRACIES TO COMMIT AN
ING ANY INDIVIDUAL OR CLASS OF INDICTABLE OFFENCE, $ 2292.
MEN BY COMBINATION OF WORK1. CONSPIRACIES TO COMMIT FELO
MEN, ETC., § 2322. NIES, $ 2292.
3. TO FALSELY ACCUSE ANOTHER OF 2. CONSPIRACIES TO COMMIT MISDE
CRIME, OR USE OTHER IMPROPER
MEANS TO INJURE HIS REPUTATION
OR EXTORT MONEY FROM HIM, S (0.) Conspiracies to violate the lot
2327. tery laws, $ 2310.
4. TO PREVENT THE DUE COURSE OF
of the peace and seditious con- IV. GENERAL REQUISITES OF IN-
DICTMENT, S 2334.
HEREIN OF OVERT ACTS, § 2334.
5. ENUMERATION OF PARTIES INIII. CONSPIRACIES TO DO AN ACT,
JURED, § 2349.
TORS, § 2361.
CONSPIRACY AT COMMON LAW.Z $ 2287. The difficulties attending the subject of conspiracy emerge prominently when we consider its pleading. Great as has z See Wharton' Precedents, for forms.
been the vacillation of judicial sentiment in the latter relation, there has been a concurrence of opinion as to the primary phases of the offence. It has been on all sides conceded that combinations of two or more persons may become indictable when directed either to the accomplishment of an illegal object, or of an indifferent object by illegal means. The conflict begins when we reach those combinations which it is assumed are indictable, not from any specific unlawfulness, but from the idea that the policy of the law forbids the reaching of the attempted object by a confederacy. We propose, therefore, instead of further defining the offence, first, to scrutinize the cases which have been considered as belonging to it; and second, to notice such general points of pleading and evidence as relate to them all jointly. Before proceeding, however, to this analysis, certain general qualifications are to be noticed :
$ 2288. Offence to be limited to cases where either object or means is unlawful. — Undoubtedly, as will presently be seen, a it has been held that there are cases in which
be in dicted for an offence committed in concert, when they would not be severally indictable for such offence if committed individually. These decisions cannot now be shaken, except by the courts who pronounced them ; but any further extension of conspiracy in this direction should be resolutely opposed. A distressing uncertainty will oppress the law if the mere fact of concert in doing an indifferent act be held to any greater extent than at present to make such act criminal. We all know what offences are indictable, and if we do not, the knowledge is readily obtained. Such offences, when not defined by statute, are limited by definitions which long processes of judicial interpretation have hardened into shapes which are distinct, solid, public, and permanent. It is otherwise, however, when we come to speak of acts which are quasi criminal, or immoral. These there has never been any judicial attempt to define, or legislative attempt to codify. No man can know in advance whether any particular enterprise in which he may engage falls under either of these heads. The chief object , of penal jurisprudence, as has been elsewhere shown, b is to prevent crime by attaching penalties to specific offences. Here, however, there are no specific offences to which penalties can be
b 1 Wh. & St. Med. Jur. $147.
a Post, $ 2314.
attached. An act of business enterprise in purchasing goods in a cheap market for the purpose of selling them in a dear market, which, in one condition of judicial sentiment would be regarded as a meritorious impetus to commercial activity, would be in another phase of judicial sentiment, as it once has been, treated as an indictable offence. Legislative and judicial compromises, which one court may view as essential to the working of the judicial machine, another court may hold to be indictable as a corrupt conspiracy.c Nor can we continue to accept the reasons by which this indefinite extension of conspiracy has been justified. It used to be said that the combination of two or more persons to do an act invests it with a criminality which it does not otherwise possess. Undoubtedly this is so with riot, which depends on tumult, which again depends on plurality of agents; but riot is positively defined by the law, and all who engage in a riot have means to know what it is, and know that it is punishable. But can this be predicated of combinations which the law does not in advance pronounce to be unlawful ? One of two alternatives we must here accept. We must, with the old English judges, look upon all voluntary combinations as suspicious, and objects of judicial suppression, or we must declare that only such combinations are penally cognizable as are declared beforehand to be unlawful. We must, in other words, on the one hand, say, that voluntary combination has in it an element of evil which infects with indictability acts not in themselves indictable, or we must hold that voluntary combination is indictable or not, just as the act it seeks to effect is indictable or not. Now, whatever may have been the sound view in old times, when the maxim was that voluntary combinations should do nothing that government could do, the first of these hypotheses must be rejected in an age in which the maxim is that government, so far as concerns affairs of trade, should do nothing that voluntary combinations can do as well, and in which great social and commercial enterprises can no longer be undertaken by individuals, but must be undertaken by combinations alone. So cogent have these and other reasons appeared to the jurists of countries whose notions of the freedom of the individual we are apt to regard as less comprehensive than our own, that conspiracy (Komplott) as a distinctive offence, has been stricken from the revised codes of Prussia, Oldenburg, Wür
c Post, $ 2326 a.