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statements as to goods deposited with them and insured by the owners against fire. It was held, that evidence that false statements were knowingly sent in by the servants, which would be for the benefit of the masters, and that afterwards the servants took fraudulent means to conceal the falsehood of the statements, with evidence that the employers had the means of knowing the falsehood, and knew of the devices used to conceal it, was no evidence to sustain the charge of a fraudulent conspiracy between the employers and servants. w
§ 2356. Variance in means fatal. — Any material variance as to the means used is fatal. x Thus, an indictment for a conspiracy, charging the object of the conspiracy to be to cheat and defraud the citizens at large, or particular individuals, out of their land entries, is not supported by evidence that the defendants conspired to make entries in the land office before it was opened, or before it was declared to be opened, or after it was opened, for the purpose of appropriating lands to their own use and excluding others. Y
§ 2357. An averment, in an indictment for a conspiracy, that the defendants conspired to defraud A., is not supported by proof that they conspired to defraud the public generally, or any individual whom they might meet and be able to defraud. z
Cheating by false pretences. — When the charge is conspiring to obtain goods by false pretences, it is sufficient to prove overt acts from which such a conspiracy could be inferred, without proof of any such actual technical false pretence as is required in an indictment for obtaining goods by false pretences. a
$ 2358. Evidence of other attempts. — Whether, in an indictment for a conspiracy to commit a wrong, evidence of an attempt about the same time, by the same defendant, by the same or similar means, to commit a similar wrong, has been elsewhere generally discussed. 6 On the one hand, it is argued that such evidence is proper to show the conspiracy; on the other, that it should be excluded as showing a distinct and substantive offence. On an indictment tried before Lord Ellenborough, at nisi prius, charging the defendants, that being persons of evil fame, and in low and indigent circumstances, they conspired together to cause themselves to be reputed persons of considerable property, and in opulent circumstances, for the purpose of defrauding one A. B., &c., evidence being given of their having hired a house in a fashionable street, and represented themselves to one tradesman employed to furnish it, as people of large fortune, a witness was called to show that at a different time they had made a similar representation to another tradesman. It was objected that the evidence formed a new offence; and that the prosecutor having elected in his indictment to press a particular charge, it was not just to enable him to spring another on the defendants without notice. The court, however, admitted the evidence, and the defendants were convicted.c
w R. v. Barry, 4 F. & F. 389.
y State v. Trammel, 2 Iredell, 379. x R. v. Whitehouse, 6 Cox C. C. 38. Ante, $ 2349. See R. v. Barry, 4 F. & F. 389; Com. z Com. v. Harley, 7 Metc. 506. v. Harley, 7 Metc. 506 ; Com. v. Kel- Ante, $ 2349. logg, 7 Cush. 473; R. v. Banks, 12 a R. r. Whitehouse, 6 Cox C. C. 38. Cox C. C. 392. Ante, $ 2320.
b Ante, $ 631, 647, 651.
$ 2359. But in a later case, where the defendant was charged with conspiring, with other persons unknown, “to cheat and defraud J. D. and others," and the overt acts laid were, that the defendant did falsely pretend to J. D. that he was a merchant named G., and did, under color of pretended contract with J. D., for the purchase of certain goods of the said J. D. and others," obtain a large quantity of the goods “ of the said J. D. and others," with intent to defraud " the said J. D. and others," it was held by the judges that the words “ and others,” throughout this indictment, must be taken to mean others the partners of J. D., and not other persons wholly unconnected with J. D., and that, on the trial of the indictment, evidence was not admissible to show that the defendant attempted to defraud other persons wholly unconnected with J. D. d
§ 2360. On an indictment for a conspiracy in inveigling a young girl from her mother's house, and reciting the marriage ceremony between her and one of the defendants, a subsequent carrying her off, with force and threats, after she had been relieved on a habeas corpus, was allowed to be given in evidence. e So, where the defendants were charged in several counts with a conspiracy, alleging several conspiracies of the same kind on the same day, the prosecutor was permitted to give evidence of several conspiracies on different days. f
c R. v. Roberts, 1 Campbell, 399. See Res. v. Hevice, 2 Yeates, 114.
d R. v. Steel, i Car. & M. 337. See ante, $ 2349. e Res. v. Hevice, 2 Yeates, 114.
The responsibility of co-conspirators for each other's acts has been already considered, g and it has been shown that each is liable in the place of an overt act. h
The practice, also, as to bills of particulars has been the subject of distinct consideration. i
2. Declaration of Co-conspirators. $ 2361. On this point reference is made to a prior head, where the question has been fully examined.;
f R. v. Levy, 2 Stark. 458; but see R. v. Rycroft, 6 Cox C. C. 76; R. r. R. v. Steel, 1 Car. & M. 337.
Esdaile, 1 F. & F. 213; R. v. Brown, 9 Ante, $ 702–6.
8 Cox C. C. 69; R. v. Hamilton, 7 C. & h Ante, $ 210 t.
P. 448. i Ante, $ 291; post, $ 3158; and see
I. GENERAL CHARACTER OF OF
FENCE, § 2362.
MUNITY AT LARGE, § 2363.
SENSES OR DISTURBS THE COM-
CONSIDERED, § 2365.
BE ANXOYING TO THE COMMUNI-
2367. 6. COLLATERAL PUBLIC ADVANTAGE
NO DEFENCE, 2368. 7. NO DEFENCE THAT SIMILAR NUI
SANCES COEXIST, $ 2369.
NESS HAS BEEN ASSIGNED BY
PARTICULAR PLACE, S 2370.
§ 2371. 10. NO DEFENCE THAT THERE WAS
NO EVIL INTENT, $ 2372. 11. NO DEFENCE THAT THE INTENT
WAS TO BEXEFIT TUE COMMUNI
2. Must SHOW AN OFFENCE NOT
PRIVATE BUT PUBLIC, § 2379. 3. MUST SHOW THAT THE ALLEGED NUISANCE IS NOT
MERELY OFFENSIVE TO THE COMMUNITY,
BUT REASONABLY so, 2380. 4. BUT AS TO COMMON SCOLDS, ETC.,
GENERIC DESCRIPTION ENOUGH,
5. BILL OF PARTICULARS, $ 2382. IV. PROOF, $ 2383.
V. OFFENCES TO RELIGION, $.2384. VI. OFFENCES TO PUBLIC DECEN
1 CY, $ 2385. VII. OFFENCES TO PUBLIC HEALTH,
2. CONTAGIOUS DISEASES, § 2388. VIII. OFFENSIVE INDUSTRIES, § 2389. IX. EXPLOSIVE COMPOUNDS, $
MON BRAWLERS,” “COMMON
ALARMS, $ 2391.
BAWDY-HOUSES, $ 2392.
TICS, § 2392.
1. BOWLING-ALLEYS, $ 2404.
TY, $ 2373.
12. ALL PARTIES CONCERNED, WHE
THER AGENTS OR ORGANIZERS,
ARE PRINCIPALS, $ 2374. 13. NEGLECTS AND OMISSIONS BY
THOSE CHARGED WITH PUBLIC
DUTIES, $ 2375. 14. EFFECT OF LICENSE FROM GOV
ERNMENT, $ 2376. II. ABATEMENT FOR, $ 2377. III. INDICTMENT, $ 2378. 1. Must CONCLUDE TO THE COMMON NUISANCE, ETC.,
XIII. EXPOSURE OF PERSON, $ 2409.
1. INDICTMENT, $ 2410.
4. NUMBER OF OBSERVERS, § 2413. XIV. OBSTRUCTING HIGHWAYS AND
NAVIGABLE STREAMS, § 2414.
AND PRIVATE ROADS, § 2414.
5. RAILWAY OBSTRUCTIONS TO COM
MON HIGHWAYS, § 2418. 6. OBSTRUCTING NAVIGABLE RIVER,
§ 2419. 7. COLLATERAL BENEFIT NO DE
FENCE, S 2420. 8. OBSTRUCTING FISH, $ 2421. 9. WHARVES, S 2422. 10. Docks, $ 2423. 11. OYSTER BEDS, § 2424. 12. LICENSE OR CHARTER FROM GOV
ERNMENT, § 2425. 13. NEGLECT IN REPAIRING ROADS,
I. GENERAL CHARACTER OF OFFENCE. § 2362. The offence of nuisance, like that of conspiracy, is a fiction of the more barbarous period of the English common law. For the purpose of avoiding that exactness of penal definition which, embarrassing as it sometimes is to pleader and judge, is yet so great a safeguard of justice, a there is an indefinite class of offences, it was declared, consisting of annoyances and discomforts to the community at large, for which an indictment is sufficient if it allege that an act was committed to the common nuisance of the people in general of the vicinage. In later years, however, the offence has been greatly restricted, and it is now generally held that no act can be prosecuted as a nuisance which is not directly and publicly deleterious to the health, comfort, or morality of the community at large. 6
1. Offence must not be confined to Individuals, but must have
within its Range the Community or Vicinage as a Class. § 2363. It is not a nuisance to dig and forcibly keep up, within a neighbor's inclosure, a pit which exposes him to danger as he a It is scarcely necessary at this greater than the benefit he gains by it
. point to repeat the proposition that one But it is essential to this, that this of the main objects of penal jurispru- evil act should be specifically defined. dence is the prevention of crime by To enable the moral effect of punishattaching in advance definite penalties ment to work rightly, the community to definite offences. The law
must now distinctly
is to be threaten penalties, and must execute punished. what it threatens so that crime may be b See Com. v. Webb, 6 Randolph, prevented by impressing on the commu- 726 ; Brooks v. State, 2 Yerger, 482 ; nity the fact that the hurt to the wrong- State v. Baldwin, 1 Dever. & Bat. doer following a particular evil act, is 195.