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forth in the indictment, such paper is proper evidence at the trial. b

§ 2282. Proof of entire record. — In an indictment for perjury on a trial at nisi prius, the postea must be produced by the plaintiff.c At common law, generally the entire record should be put in evidence. d But where the proceedings were in any way collateral, and there is parol proof of regularity, it is not necessary that all the original papers should be produced or exemplified. e Nor need there be proof of final judgment when the postea is produced.f

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§ 2282 a. Character as a defence. As a defence, character for truthfulness may be set up; and Lord Denman once permitted the following questions: "What is the character of the defendant for veracity and honor?" and "Do you consider him a man likely to commit perjury.”g

X. ATTEMPTS TO COMMIT PERJURY.

§ 2283. An attempt to commit perjury is indictable i on the same reasoning as are attempts to commit other offences. And when the complete offence of perjury is not proved (as where the false oath is taken before an incompetent officer, the defendant believing him to be competent), the defendant may be indicted for the attempt.j Attempts to suborn witnesses, and to suppress testimony, will be independently considered.k

XI. SUBORNATION OF PERJURY./

§ 2284. To constitute subornation of perjury, which is an offence at common law, the party charged must procure the com

b Osburn v. State, 7 Ham. (Part 1st) 212.

c Resp. v. Goss, 2 Yeates, 479.

d Porter v. Cooper, 6 C. & P. 354. e R. v. Turner, 2 C. & K. 732; R. v. Smith, 1 L. R. C. C. 110; 11 Cox C. C. 10. See ante, § 2270.

f Bull N. P. 243.

g R. v. Hemp, 5 C. & P. 468. Ante, § 815-820.

i R. v. Taylor, Holt, 534. Post, §

2700.

j R. v. Stone, Dears. 251; 22 Eng. L. & Eq. 593.

k Post, § 2287.

1 For forms of indictment, see Wh. Prec., as follows:

(597) Subornation of perjury in a pro-
secution for fornication, &c.
(598) Subornation of perjury on a trial
for robbery, where the prisoner set
up an alibi.

(599) Subornation of perjury in an
action of trespass.
(600) Corruptly endeavoring to influ-

ence a witness in the U. S. courts.
(601) Endeavoring to entice a witness
to withdraw himself from the prose-
cution of a felon.

(602) Persuading a witness not to give

mission of the perjury, by inciting, instigating, or persuading the witness to commit the crime. 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

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§ 2285. Testimony must be material. — In subornation of perjury, the same rules as to materiality of testimony prevail as in perjury.o

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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. q1

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

evidence against a person charged with an offence before the grand jury.

(603) Inducing a witness to withhold

his evidence as to the execution of a deed of trust, in Virginia. (604) Endeavoring to suborn a person to give evidence on the trial of an action of trespass, issued in the supreme judicial court of Massachu

setts.

(605) Soliciting a woman to commit perjury, by swearing a child to an innocent person, the attempt being unsuccessful.

(606) Soliciting a witness to disobey a subpoena to give evidence before the grand jury.

m 1 Hawk. c. 69, s. 10; 2 Rus. on Cr. 6th Am. ed. 596; U. S. v. Staats, 8 How. U. S. 41; Com. v. Douglass, 5 Metc. 241; R. v. Reilley, 2 Leach, 509. n Com. v. Douglass, 5 Metc. 241; Stewart v. State, 22 Ohio St. 477.

o Com. v. Smith, 11 Allen, 243. p People v. Evans, 40 N. Y. 1. So in Ohio by act of May, 1869.

U. S. v. Wilcox, 4 Blatch. C. C. 391 and 393.

q1 Stewart v. State, 22 Ohio St. 477.

witness to give particular testimony, irrespective of the truth,r and to dissuade a witness from attending the trial of a cause, s even though such witness had not been served with a subpoena, are indictable. t

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

r2 Rus. on Cr. 6th Am. ed. 595. Overton, ex parte, 2 Rose, 257.

8 1 Ibid. 182; State v. Carpenter, 20 Ver. 9.

t State v. Keyes, 8 Ver. 57.

630

u State v. Holding, 1 McCord, 31. v State v. Early, 3 Harrington, 562.

w State v. Carpenter, 20 Vt. (5 Washb.) 9.

CHAPTER II.

CONSPIRACY.

CONSPIRACY AT COMMON LAW. Offence to be limited to cases where either object or means is unlawful, § 2288. Where concert is necessary to offence, conspiracy does not lie, § 2289. Must be directed to something which, if not interrupted by extraordinary natural occurrences, or by collateral human intervention, will result in an unlawful act, § 2290.

May be defended by whatever is a defence to attempt, § 2291.

I. CONSPIRACIES TO COMMIT AN INDICTABLE OFFENCE, § 2292.

1. CONSPIRACIES TO COMMIT FELONIES, § 2292.

2. CONSPIRACIES TO COMMIT MISDE-
MEANORS, § 2295.

(a.) Conspiracies to cheat, § 2297.
(b.) Conspiracies to violate the lot-
tery laws, § 2310.

(c.) Conspiracies to commit breaches

of the peace and seditious conspiracies, § 2311.

(d.) Conspiracies to make or to utter forged or illegal notes, § 2312.

II. CONSPIRACIES TO MAKE USE OF MEANS THEMSELVES THE SUBJECT OF INDICTMENT, TO EFFECT AN INDIFFERENT OBJECT, § 2313.

III. CONSPIRACIES TO DO AN ACT,

THE COMMISSION OF WHICH
BY AN INDIVIDUAL MAY NOT
BE INDICTABLE, BUT THE COM-
MISSION OF WHICH BY TWO OR
MORE IN PURSUANCE OF A PRE-
VIOUS COMBINATION, IS CAL-
CULATED TO AFFECT THE COM-
MUNITY INJURIOUSLY, § 2314.

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CONSPIRACY AT COMMON LAW.z

OF CO-CONSPIRA

§ 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 persons may be indicted 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

a Post, § 2314.

b1 Wh. & St. Med. Jur. §147.

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