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tion, a conspiracy must be a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful by criminal or unlawful means. In punishing a conspiracy the law does not punish mere intention. There is something more than this. There is an unlawful agreement or combination, and this is what constitutes the offense. If, however, the contemplated crime be one of which concert or consent is a constituent part, such as fornication, adultery, bigamy, incest, and the like, the mere agreement or accord of the parties to the offense cannot be so separated from the offense itself as to support an indictment for conspiracy. 86a

135. Overt Act Not Necessary.

The conspiring is a distinct offense, and to make it indictable nothing whatever need be done in execution of it. No overt act is necessary. If two men meet, and agree to commit a crime, they are guilty of a criminal conspiracy, and liable to indictment, though the very next moment they may change their minds and determine not to do so.87

86 Com. v. Hunt, 4 Metc. (Mass.) 111, 38 Am. Dec. 346, Beale's Cas. 821; U. S. v. Cassidy, 67 Fed. 698; Orr v. People, 63 Ill. App. 305; State v. Clark, 9 Houst. (Del.) 536, 33 Atl. 310. And see post, § 135.

86a Shannon v. Com., 14 Pa. 226, Mikell's Cas. 383; Miles v. State, 58 Ala. 390. But the implication of a third person will make it a conspiracy. State v. Clemenson, 123 Iowa, 524, 99 N. W. 139. The rule does not apply to a conspiracy to maliciously injure another in his business, though neither of the conspirators alone could effect the purpose. State v. Huegin, 110 Wis. 189, 85 N. W. 1046.

87 Poulterers' Case, 9 Coke, 55b, Beale's Cas. 801; Rex v. Edwards, 8 Mod. 320, Beale's Cas. 804; Dill v. State, 35 Tex. Cr. R. 240, 33 S. W. 126, Mikell's Cas. 392; Com. v. Judd, 2 Mass. 329, 3 Am. Dec. 54; People v. Richards, 1 Mich. 216, 51 Am. Dec. 75, 80; People v. Mather, 4 Wend. (N. Y.) 229, 263, 21 Am. Dec. 122, 151, Mikell's Cas. 385; State v. Ripley, 31 Me. 386; State v. Buchanan, 5 Har. & J. (Md.) 317, 9 Am. Dec. 534, Mikell's Cas. 358; State v. Younger, 1 Dev. (N. C.) 357, 17 Am.

136. The Conspiring or Agreement.

The term "conspiracy" imports an agreement. Unless this is shown, the crime is not made out.88 But the agreement need not be a formal one. It need not be manifested by any formal words, written or spoken. It is sufficient if the minds of the parties meet understandingly, so as to bring about an intelligent and deliberate agreement to do the acts contemplated.89

Dec. 571; Com. v. McKisson, 8 Serg. & R. (Pa.) 420; State v. Straw, 42 N. H. 393; State v. Crowley, 41 Wis. 271; O'Connell v. Reg., 11 Cl. & F. 155, 1 Cox, C. C. 413; State v. Cawood, 2 Stew. (Ala.) 360; State v. Pulle, 12 Minn. 164, Mikell's Cas. 16.

The statute of New York has modified the common law in this respect by requiring that, to constitute the crime of conspiracy, there must be both an agreement and an overt act to effect the object of the agreement, except where the conspiracy is to commit some "felony upon the person of another, or to commit arson or burglary." Pen. Code, § 171. See People v. Flack, 125 N. Y. 324, 26 N. E. 267, Mikell's Cas. 138. And there are similar statutes in several other states. See U. S. v. Barrett, 65 Fed. 62; People v. Daniels, 105 Cal. 262, 38 Pac. 720; State v. Clary, 64 Me. 369; Wood v. State, 47 N. J. Law, 180.

The overt act, however, need not be criminal in itself. U. S. v. Cassidy, 67 Fed. 698.

88 Mulchy v. Reg., L. R. 3 H. L. 306.

"Of course, a mere discussion between parties about entering into a conspiracy, or as to the means to be adopted for the performance of an unlawful act, does not constitute a conspiracy, unless the scheme, or some proposed scheme, is in fact assented to, concurred in by the parties in some manner, so that their minds meet for the accomplishment of the proposed unlawful act." Per Dyer, J., in U. S. v. Goldberg, 7 Biss. 175, 180, Fed. Cas. No. 15,223.

89 "Concurrence of sentiment and co-operative conduct in an unlawful and criminal enterprise, and not formality of speech, are the essential ingredients of criminal conspiracy." McKee v. State, 111 Ind. 378, 12 N. E. 510. And see People v. Mather, 4 Wend. (N. Y.) 229, 260, 21 Am. Dec. 122, 147, Mikell's Cas. 385; Gibson v. State, 89 Ala. 121, 8 So. 98, 18 Am. St. Rep. 96; Spies v. People, 122 Ill. 170, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320.

"It is not necessary, to constitute a conspiracy, that two or more persons should meet together, and enter into an explicit or formal agree ment for an unlawful scheme, or that they should directly, by words or in writing, state what the unlawful scheme is to be, and the details

All of the conspirators need not enter into the agreement at the same time. When a new party, with knowledge of the facts, concurs in the plans of the original conspirators, and comes in to aid in the execution of them, he is from that moment a co-conspirator. He commits the offense whenever he agrees to become a party to the transaction; and doing any act in furtherance of the original design shows his concurrence, though it is not necessary to make him guilty.90

The crime of conspiracy cannot be committed by less than two persons, for, in the nature of things, less than two cannot make an agreement.91 At common law, husband and wife are regarded as but one person, so that they cannot enter into an agreement, and therefore they cannot be guilty of conspiracy; and this rule still obtains, unless the common law has been changed by statute.92 Another result of the necessity of two persons to commit this offense is that, where two are indicted, an acquittal of one is necessarily an acquittal of the other. But the death of one conspirator will not prevent a trial and conviction of the other.93

of the plan, or means by which the unlawful combination is to be made effective. It is sufficient if two or more persons, in any manner or through any contrivance, positively or tacitly come to a mutual understanding to accomplish a common and unlawful design." Dyer, J., in U. S. v. Goldberg, 7 Biss. 175, 180, Fed. Cas. No. 15,223; U. S. v. Cassidy, 67 Fed. 698.

90 People v. Mather, 4 Wend. (N. Y.) 229, 260, 21 Am. Dec. 122, 147, Mikell's Cas. 385; Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320; U. S. v. Sacia, 2 Fed. 754; U. S. v. Cassidy, 67 Fed. 698; State v. Clark, 9 Houst. (Del.) 536, 33 Atl. 310.

91 State v. Glidden, 55 Conn. 46, 8 Atl. 890, 3 Am. St. Rep. 23; State v. Setter, 57 Conn. 461, 18 Atl. 782, 14 Am. St. Rep. 121.

92 People v. Miller, 82 Cal. 107, 22 Pac. 934; State v. Covington, 4 Ala. 603; State v. Clark, 9 Houst. (Del.) 536, 33 Atl. 310.

93 Rex v. Niccolls, 2 Strange, 1227; People v. Olcott, 2 Johns. Cas. (N. Y.) 301, 1 Am. Dec. 168; Com. v. Edwards, 135 Pa. 474, 19 Atl. 1064; State v. Clemenson, 123 Iowa, 524, 99 N. W. 139.

137. The Unlawful Purpose-In General.

As was stated in a previous section, a conspiracy may be described generally as a combination to accomplish some criminal or unlawful purpose, or to accomplish some purpose that is not in itself criminal or unlawful by criminal or unlawful means.** In other words, the purpose or means may be criminal, or they may be, not criminal, but merely unlawful. The difficulty is in determining what purposes are unlawful within the meaning of the law. A conspiracy to do an act that is not unlawful by means that are not unlawful is not indictable, whatever the intent may be.95

In a leading case in Maryland,96 Judge Buchanan exhaustively reviewed the early English cases, and concluded that an indictment would lie in the following cases:

1. For a conspiracy to do any act that is criminal per se. 2. For a conspiracy to do an act not illegal, nor punishable, if done by an individual, but immoral only.

3. For a conspiracy to do an act neither illegal nor immoral in an individual, but to effect a purpose which has a tendency to prejudice the public.

4. For a conspiracy to extort money from another, or to injure his reputation, by means not indictable if practiced by an individual.

5. For a conspiracy to cheat and defraud a third person, ac

94 Com. v. Hunt, 4 Metc. (Mass.) 111, 38 Am. Dec. 346, Beale's Cas. 821. And see, to the same effect, Alderman v. People, 4 Mich. 414, 69 Am. Dec. 321; Smith v. People, 25 Ill. 17, 76 Am. Dec. 780, Beale's Cas. 811; Reg. v. Parnell, 14 Cox, C. C. 508; State v. Mayberry, 48 Me. 218; State v. Donaldson, 32 N. J. Law, 151, 90 Am. Dec. 649, Beale's Cas. 828. 95 See Com. v. Kostenbander, 17 W. N. C. (Pa.) 303, Beale's Case, where it was held (by a divided court, however), that an indictment would not lie against several persons for conspiracy to induce another to sell them liquor in violation of law, and then sue him as informers for the penalty.

96 State v. Buchanan, 5 Har. & J. (Md.) 317, 9 Am. Dec. 534, Mikell's Cas. 358.

complished by means of an act which would not in law amount to an indictable cheat, if effected by an individual.

6. For a malicious conspiracy to impoverish or ruin a third person in his trade or profession.

7. For a conspiracy to defraud a third person by means of an act not per se unlawful, and though no person be injured thereby.

8. For a bare conspiracy to cheat and defraud a third person, though the means of effecting it may not be determined on at the time.

138. The Means to be Employed.

If the object of a conspiracy is a crime or otherwise unlawful, the means by which it is to be accomplished are altogether immaterial.97 But if the object is not unlawful, unlawful means of accomplishing it must be contemplated.98 This distinction. is important in determining the sufficiency of indictments for conspiracy. In the first case the means need not be set out in the indictment, while in the latter they must.99

When the object of the conspiracy is unlawful, it is not even necessary that the means of accomplishing it shall be agreed upon at the time.100

139. Conspiracy to Commit Crime-In General.

Nothing is better settled in the criminal law than the doctrine

97 Rex v. Eccles, 1 Leach, C. C. 274; Smith v. People, 25 Ill. 17, 76 Am. Dec. 780, Beale's Cas. 811; State v. Buchanan, 5 Har. & J. (Md.) 317, 9 Am. Dec. 534, Mikell's Cas. 358; Com. v. Hunt, 4 Metc. (Mass.) 111, 38 Am. Dec. 346, Beale's Cas. 821; People v. Richards, Mich. 216,

51 Am. Dec. 75; Com. v. McKisson, 8 Serg. & R. (Pa.) 420, 11 Am. Dec. 630.

98 Smith v. People, supra; People v. Richards, supra; Com. v. Eastman, 1 Cush. (Mass.) 189, 48 Am. Dec. 596; State v. Crowley, 41 Wis. 271.

* See the cases above cited.

100 State v. Crowley, 41 Wis. 271; Rex v. Gill, 2 Barn. & Ald. 204.