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associated with each other, seems to be sufficient to enable the jury to presume concurrence of sentiment; and one competent witness will suffice to prove the coöperation of any individual conspirator. 8 If, therefore, it appear that two persons, by their acts, are pursuing the same object, often by the same means, one performing part of an act. and the other completing it, for the attainment of the object, the jury may draw the conclusion that there is a conspiracy. t

Order of proof. It was considered in the Queen's case, that on a prosecution for a crime to be proved by conspiracy, general evidence of an existing conspiracy may, in the first instance, be received, as a preliminary step to that more particular evidence, by which it is to be shown that the individual defendants were guilty participators in such conspiracy; and that this is often necessary to render the particular evidence intelligible, and to show the true meaning and character of the acts of individual defendants. In such cases the general nature of the whole evidence intended to be adduced should be opened to the court; and if upon such opening it should appear manifest that previously no particular proof sufficient to affect the individual defendants is intended to be adduced, it would become the duty of the judge to stop the case in limine, and not to allow the general evidence to be received, which, even if attended with no other bad effect, such as exciting an unreasonable prejudice, would certainly be a useless waste of time. u But ordinarily it is only necessary to prove the acts of such defendant in the first place, leaving the question of conspiracy to be determined by infer

ence. v

Mere cognizance of fraudulent action no conspiracy. - But it needs something more than a proof of mere passive cognizance of fraudulent or illegal action of others to sustain conspiracy. There must be something showing active participation of some kind by the parties charged. Of this we have an illustration in an English trial before Martin, B., where certain wharfingers and their servants were indicted for a conspiracy to defraud by false

s R. v. Cope, 1 Stra. 144; Com. v. Warren, 6 Mass. 74; Com. v. Crowninshield, 10 Pick. 497.

t R. v. Murphey, 8 Car. & P. 297; Com. v. Warren, 6 Mass. 74.

u Queen's case, 2 Brod. & Bing. 310. v R. v. Brittain, 3 Cox C. C. 77; R. v. Blake, 6 Q. B. 126.

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. 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. 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.

b

w R. v. Barry, 4 F. & F. 389.

x R. v. Whitehouse, 6 Cox C. C. 38. See R. v. Barry, 4 F. & F. 389; Com. v. Harley, 7 Metc. 506; Com. v. Kellogg, 7 Cush. 473; R. v. Banks, 12 Ante, § 2320.

Cox C. C. 392.

y State v. Trammel, 2 Iredell, 379. Ante, § 2349.

z Com. v. Harley, 7 Metc. 506. Ante, § 2349.

a R. v. Whitehouse, 6 Cox C. C. 38. b Ante, § 631, 647, 651.

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

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§ 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

c R. v. Roberts, 1 Campbell, 399. See Res. v. Hevice, 2 Yeates, 114.

d R. v. Steel, 1 Car. & M. 337. See ante, § 2349.

e Res. v. Hevice, 2 Yeates, 114.

same day, the prosecutor was permitted to give evidence of sev eral conspiracies on different days.f

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. ¿

2. Declaration of Co-conspirators.

§ 2361. On this point reference is made to a prior head, where the question has been fully examined.j

f R. v. Levy, 2 Stark. 458; but see R. v. Steel, 1 Car. & M. 337.

g Ante, § 702-6.

h Ante, § 210 t.

i Ante, § 291; post, § 3158; and see

686

R. v. Rycroft, 6 Cox C. C. 76; R. v.
Esdaile, 1 F. & F. 213; R. v. Brown,
8 Cox C. C. 69; R. v. Hamilton, 7 C. &
P. 448.

j Ibid.

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