101

that a conspiracy to commit any crime, either as an end or as the means of accomplishing an end not criminal, is a misdemeanor at common law; and it is immaterial whether the intended crime be a felony or merely a misdemeanor, and whether it be criminal at common law or by statute only." For this proposition, said Judge Buchanan in the case above referred to, "it can scarcely be necessary to offer any authority." Conspiracy to obtain money or property by false pretenses is clearly indictable where there is a statute punishing the obtaining of money or property by such means.103 The same is true of conspiracy to commit an assault and battery, or to procure the false imprisonment of another,104 to rob or steal,105 etc.

140. Conspiracy to Pervert or Obstruct Justice.

"102

To willfully obstruct or pervert the course of public justice is a misdemeanor at common law, and therefore a conspiracy to effect such a purpose is clearly indictable as a conspiracy to commit a crime. Thus, it is a crime to conspire to obstruct an officer in the discharge of his official duty;106 to fabricate or destroy evidence, as by introducing false affidavits or certificates in

101 Reg. v. Bunn, 12 Cox, C. C. 316; Beasley, C. J., in State v. Donaldson, 32 N. J. Law, 151, 90 Am. Dec. 649, Beale's Cas. 828; State v. Glidden, 55 Conn. 46, 8 Atl. 890.

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

103 Reg. v. Hudson, 8 Cox, C. C. 305, Beale's Cas. 158; Orr v. People, 63 Ill. App. 305; People v. Butler, 111 Mich. 483, 69 N. W. 734.

104 State v. McNally, 34 Me. 210, 56 Am. Dec. 650; Com. v. Putnam, 29 Pa. 296. Conspiracy to have a sane woman declared insane, and confined in an asylum, is indictable. Com. v. Spink, 137 Pa. 255, 20 Atl. 680.

105 People v. Richards, 67 Cal. 412, 7 Pac. 828, 56 Am. Rep. 716; Miller v. Com., 78 Ky. 15, 39 Am. Rep. 194.

106 State v. Noyes, 25 Vt. 415, 420; State v. McNally, 34 Me. 210, 56 Am. Dec. 650.

.109

evidence, by suppressing a will, etc.,107 or by passing a person off as the heir of a decedent to obtain a part of his estate;109 to procure criminal process for improper purposes; to enforce by legal process the payment of sums not due;110 or to pack a jury.111 A conspiracy between a witness and others for the former not to appear in obedience to a summons on the trial of an indictment is an indictable conspiracy.1

141. Conspiracy to do Immoral Acts.

112

A conspiracy to accomplish an object that is immoral is clearly indictable, if the act contemplated is an offense against the public morals, as an act of public indecency or immorality.113 And even when the object of a conspiracy is not of this character, if it is immoral, it is indictable. The object need not be an indictable offense. Thus, in a leading English case,114 an indictment was sustained for a conspiracy to place a girl, with her own consent, in the hands of a man for the purpose of prostitution, though neither seduction nor prostitution in private was indictable at common law. The immoral object made the conspiracy indictable.115

107 State v. DeWitt, 2 Hill (S. C.) 282, 27 Am. Dec. 374. In Rex v. Mawbey, 6 Term R. 619, an indictment was sustained for conspiracy to pervert the course of justice by producing in evidence a false certificate by justices of the peace that a highway was repaired, to influence the judgment of the court on an indictment for failure to repair.

It is an indictable offense to conspire to cause it falsely to appear of record that a certain person is married to one of the conspirators. Com. v. Waterman, 122 Mass. 43.

108 Rex v. Robinson, 1 Leach, C. C. 37.

109 Slomer v. People, 25 Ill. 70, 76 Am. Dec. 786.

110 Reg. v. Taylor, 15 Cox, C. C. 265, 268.

111 O'Donnell v. People, 41 Ill. App. 23.

112 Reg. v. Hamp, 6 Cox, C. C. 167; People v. Chase, 16 Barb. (N. Y.) 495.

113 Post, § 458 et seq.

114 Rex v. Delaval, 3 Burrow, 1434, 1 W. Bl. 410, 439, Beale's Cas. 101. 115 And see Rex v. Grey, 9 How. St. Tr. 127, 1 East, P. C. 460; Smith

It has also been held an indictable offense to conspire to persuade a woman and her parents that a forged license is genuine, and that one of the conspirators is a justice of the peace, and thus gain their consent to a sham marriage.116 There may be a conspiracy to commit adultery,116a but not between the man and the woman themselves; concert of action in such case being a constituent part of the offense itself.116b

142. Conspiracy to Commit a Mere Private Wrong-In General.

There are some cases in which it has been held (by Lord Ellenborough, among others) that to render a conspiracy indictable there must be a combination to commit scme act that is known as an offense at common law, or that has been declared an offense by statute, and that a conspiracy, therefore, to commit a mere private fraud or private trespass, is not criminal.117 But the overwhelming weight of authority is against these decisions. To render a conspiracy criminal, it is not at all necessary that a criminal act shall be contemplated, either as the end or as a means. It is a misdemeanor to conspire to com

v. People, 25 Ill. 17, 76 Am. Dec. 780, Beale's Cas. 811 (conspiracy to fraudulently procure a girl to have carnal connection with a man); Reg. v. Howell, 4 Fost. & F. 160; Reg. v. Mears, 2 Den. C. C. 79, 4 Cox, C. C. 425; State v. Powell, 121 N. C. 635, 28 S. E. 525.

116 State v. Murphy, 6 Ala. 765, 41 Am. Dec. 79. And see State v. Wilson, 121 N. C. 650, 28 S. E. 416.

116a State v. Clemenson, 123 Iowa, 524, 99 N. W. 139.

116b Shannon v. Com., 14 Pa. 226, Mikell's Cas. 383; Miles v. State, 58 Ala. 390.

117 Alderman v. People, 4 Mich. 414, 69 Am. Dec. 321 (but see People v. Richards, 1 Mich. 216, 51 Am. Dec. 75); Com. v. Prius, 9 Gray (Mass.) 127, Beale's Cas. 810 (but see Com. v. Warren, 6 Mass. 74); State v. Rickey, 9 N. J. Law, 293 (disapproved in State v. Norton, 23 N. J. Law, 44 and State v. Donaldson, 32 N. J. Law, 151, 90 Am. Dec. 649, Beale's Cas. 828); State v. Straw, 42 N. H. 393. And see Rex v. Pywell, 1 Starkie 402, Beale's Cas. 807; Rex v. Turner, 13 East, 228, Beale's Cas. 805 (disapproved in Reg. v. Rowlands, 5 Cox, C. C. 436, 490, per Lord Campbell; and in Mifflin v. Com., 5 Watts & S. (Pa.) 461, 463, per Chief Justice Gibson).

mit against another a mere private wrong, the only effect of which would be to render the wrongdoers liable to an action for damages, if acting individually. While the contemplated wrong would not be indictable, the unlawful combination to commit it, because of the increased power to injure, is regarded as so far injurious to the public at large as to require the state to interfere. Hawkins says: "There can be no doubt that all combinations whatsoever, wrongfully to prejudice a third person, are highly criminal at common law."118 And Chitty says: "All confederacies wrongfully to prejudice another are misdemeanors at common law, whether the intention is to injure his property, his person, or his character."119 143. Conspiracy to Commit a Trespass.

In accordance with this doctrine it is well settled that a conspiracy to commit any trespass upon the property of another, real or personal, is indictable at common law, though the intended trespass may be nothing more than a civil injury, and would not be indictable if committed.120

144. Conspiracy to Defraud.

The doctrine has also been frequently applied to conspiracies to perpetrate a fraud upon others. To obtain another's money or goods by mere false representations, without using false weights, measures, or tokens, is a mere private wrong at common law, and not an indictable cheat, and yet it has been held

1181 Hawk, P. C. c. 72; Rex v. Edwards, 8 Mod. 320, Beale's Cas. 804. 119 3 Chit. Crim. Law, 1139. And see the cases cited specifically in the following notes.

An indictment has been sustained for conspiracy to effect the escape of a female infant, with a view to her marriage against her father's will, Mifflin v. Com., 5 Watts & S. (Pa.) 461, 40 Am. Dec. 527; for conspiracy to seduce a minor son and heir, “and carry him out of the custody, counsel, and government of his father," with design to marry him to a woman of ill fame, Rex v. Thorp, 5 Mod. 221.

120 Wilson v. Com., 96 Pa. 56.

121

an indictable offense to conspire to defraud by such means,' and it is immaterial that the means employed are not successful nor calculated to deceive persons of ordinary intelligence.121a The same is true of any other conspiracy to defraud by means that are not criminal, but merely wrongful.122 Other Illustrations of Conspiracy to Defraud.─Thus, indictments have been sustained for conspiracy to falsely read a release to an illiterate man, and thereby induce him to sign it;123 to persuade a man to bet on a race that is to be fraudulently run;124 to deceive the general public by conducting "materializing seances" and masquerading as spirits of the dead;124a to get a man drunk and cheat him at cards;125 to cheat one out of his land;126 to obtain goods from a merchant without paying for them;127 to induce a person, by false representations, to forego a legal claim;128 to dispose of goods in contemplation of

121 Reg. v. Mackarty, 2 Ld. Raym. 1179; Rex v. Wheatly, 2 Burrow, 1125, Beale's Cas. 97; Com. v. Warren, 6 Mass. 74; People v. Butler, 111 Mich. 483, 69 N. W. 734. See, also, Reg. v. Hudson, 8 Cox, C. C. 305, Beale's Cas. 158.

121a People v. Gilman, 121 Mich. 187, 80 N. W. 4, 80 Am. St. Rep. 490, 46 L. R. A. 218.

122 Rex v. Edwards, 8 Mod. 320, Beale's Cas. 804; Reg. v. Warburton, L. R. 1 C. C. 274, Beale's Cas. 808; State v. Buchanan, 5 Har. & J. (Md.) 317, 9 Am. Dec. 534, Mikell's Cas. 358; People v. Richards, 1 Mich. 216, 51 Am. Dec. 75; People v. Underwood, 16 Wend. (N. Y.) 546; Johnson v. People, 22 Ill. 314; Orr v. People, 63 Ill. App. 305; and cases cited in the notes following.

123 Reg. v. Skirret, Sid. 312.

124 Reg. v. Orbell, 6 Mod. 42.

124a People v. Gilman, 121 Mich. 187, 80 N. W. 4, 80 Am. St. Rep. 490, 46 L. R. A. 218.

125 State v. Younger, 1 Dev. (N. C.) 357, 17 Am. Dec. 571.

126 People v. Richards, 1 Mich. 216, 51 Am. Dec. 75.

127 Reg. v. Orman, 14 Cox, C. C. 381; Com. v. Ward, 1 Mass. 473; Com.

v. Eastman, 1 Cush. (Mass.) 189, 48 Am. Dec. 596.

128 Reg. v. Carlisle, Dears. C. C. 337, 6 Cox, C. C. 336.