§ 88. In the third place, it is material to specify and prove the person intended to be defrauded; and that the design was successfully accomplished, at least so far as to expose the person to the danger of loss.1

1 The State v. Woodson, 5 Humph. 55; The People v. Genung, 11 Wend. 18; Commonwealth v. Wilgus, 4 Pick. 177.

CONSPIRACY.

§ 89. A CONSPIRACY may be described in general terms, as 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. It is not essential that

1 The books contain much discussion on the nature and definition of this offence; but this description being one of the most recent, and given upon great consideration, is deemed sufficient. See Commonwealth v. Hunt, 4 Met. 111. The learned Chief Justice, in delivering the judgment in that case, expounded what may be regarded as the general doctrine of American law on this subject, as follows:- "We have no doubt, that by the operation of the constitution of this Commonwealth, the general rules of the common law, making conspiracy an indictable offence, are in force here, and that this is included in the description of laws which had, before the adoption of the constitution, been used and approved in the Province, Colony, or State

Massachusetts Bay, and usually practised in the courts of law. Const. of Mass. c. vi. § 6. It was so held in Commonwealth v. Boynton, and Commonwealth v. Pierpont, cases decided before reports of cases were regularly published, and in many cases since. Commonwealth v. Ward, 1 Mass. 473; Commonwealth v. Judd, and Commonwealth v. Tibbetts, 2 Mass. 329, 536; Commonwealth v. Warren, 6 Mass. 74. Still, it is proper in this connection to remark, that although the common law in regard to conspiracy in this Commonwealth is in force, yet it will not necessarily follow that every indictment at common law for this offence is a precedent for a similar indictment in this State. The general rule of the common law is, that it is a criminal and indictable offence, for two or more to confederate and combine together, by concerted means, to do that which is unlawful or criminal to the injury of the public, or portions or classes of the community, or even to the rights of an individual. This rule of law may be equally in force as a rule of the common law in England and in this Commonwealth; and yet it must depend upon the local laws of each country to determine, whether the purpose to be accomplished by the combination, or the concerted means of accomplishing

* See a statement of these cases, in 3 Law Reporter, 295, 296.

the act intended to be done should be punishable by indictment; for if it be, to destroy a man's reputation by verbal slander, or to seduce a female to elope from her parent's

it, be unlawful or criminal in the respective countries. All those laws of the parent country, whether rules of the common law, or early English statutes, which were made for the purpose of regulating the wages of laborers, the settlement of paupers, and making it penal for any one to use a trade or handicraft to which he had not served a full apprenticeship-not being adapted to the circumstances of our colonial condition-were not adopted, used, or approved, and therefore do not come within the description of the laws adopted and confirmed by the provision of the constitution already cited. This consideration will do something towards reconciling the English and American cases, and may indicate how far the principles of the English cases will apply in this Commonwealth, and show why a conviction in England, in many cases, would not be a precedent for a like conviction here. The King v. Journeymen Tailors of Cambridge, 8 Mod. 10, for instance, is commonly cited as an authority for an indictment at common law, and a conviction of journeymen mechanics of a conspiracy to raise their wages. It was there held, that the indictment need not conclude contra formam statuti, because the gist of the offence was the conspiracy, which was an offence at common law. At the same time it was conceded, that the unlawful object to be accomplished was the raising of wages above the rate fixed by a general act of parliament. It was therefore a conspiracy to violate a general statute law, made for the regulation of a large branch of trade, affecting the comfort and interest of the public; and thus the object to be accomplished by the conspiracy was unlawful, if not criminal." "But the great difficulty is, in framing any definition or description, to be drawn from the decided cases, which shall specifically identify this offence -a description broad enough to include all cases punishable under this description, without including acts which are not punishable. Without attempting to review and reconcile all the cases, we are of opinion, that as a general description, though perhaps not a precise and accurate definition, 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. We use the terms criminal or unlawful, because it is manifest that many acts are unlawful which are not punishable by indictment or other public prosecution; and yet there is no doubt, we think, that a combination by numbers to do them would be an unlawful conspiracy, and punishable by indictment.” See 4 Met. 121-123. And see the People v. Mather, 4 Wend. 229, 259; The State v. Rowley, 12 Conn. 101; Commonwealth v. Carlisle, 1 Journ. Jurisp. 225, per Gibson, J.; Regina v. Vincent, 9 C. & P. 91, per Alderson, B.; Rex v. Seward, 1 Ad. & El. 713, per Ld. Denman.

14 Met. 123, per Shaw, C. J.; Rex v. Armstrong, 1 Ventr. 304.

house, for the purpose of prostitution, the conspiracy is a criminal offence, though the act itself be not indictable.1

§ 90. The objects of this crime, though numerous and multiform, may be classified as follows:-1st, To perpetrate an offence which is already punishable by law; as, for example, to commit a murder, or other felony, or a misdemeanor, such as to vilify the government, and embarrass its operations; or to sell lottery tickets, when forbidden by law, and the like.2 And here it may be observed, that where the conspiracy to commit a felony is carried into effect, the crime of conspiracy, which is a misdemeanor, is merged in the higher offence of felony; but that if the object of the conspiracy be to commit a misdemeanor only, and it be committed, the offence of conspiracy is not merged, but is still separately punishable. 2dly, To injure a third person by charging him with a crime, or with any other act tending to disgrace and injure him, or with intent to extort money from him by putting him in fear of disgrace or harm; or by defrauding him of his property, or ruining his reputation, trade, or profession. Of this class are conspiracies to indict a man of a crime, in order to extort money from him; or falsely to charge a man with the paternity of a bastard child; 5 or with fraudulently abstracting goods from a bale; or, to make him drunk in order to cheat

1 Rex v. Ld. Grey, 1 East, P. C. 460; Mifflin v. The Commonwealth, 5 W. & Serg. 561; Anderson v. The Commonwealth, 5 Rand. 627; Respublica v. Hevice, 2 Yeates, 114; Rex v. Delaval, 3 Burr. 1434; The State v. Murphy, 6 Ala. 765.

2 Commonwealth v. Crowninshield, 10 Pick. 497; Rex v. Vincent, 9 C. & P. 91; Commonwealth v. Kingsbury, 5 Mass. 106; The State v. Buchanan, 5 H. & J. 317.

3 Ibid.; The People v. Mather, 4 Wend. 265; The State v. Murray, 3 Shepl. 100.

4 Rex v. Hollingberry, 4 B. & C. 329; 6 D. & R. 345, S. C. If the object be to extort money from him, it is immaterial whether the charge be true or false. Ibid. And see Wright v. Black, Winch. 28, 54.

5 1 Hawk. P. C. ch. 72, sec. 2; Regina v.

see Commonwealth v. Tibbetts, 2 Mass. 536.

6 Rex v. Rispal, 3 Burr. 1320.

Best, 2 Ld. Raym. 1167. And

him;1 or, to impose inferior goods upon another, as and for goods of another and better kind, in exchange for goods of his own; or, to impoverish a man by preventing him from working at his trade; or, to defraud a corporation. But it is said, that if the act to be done is merely a civil trespass, such as to poach for game,5 or, to sell an unsound horse with a false warranty of soundness, an indictment will not lie. 3dly, To do an act tending to obstruct, pervert or defeat the course of public justice. Hence it is an indictable offence, to conspire to obtain from magistrates a false certificate that a highway is in good repair, in order to influence the judgment to be pronounced against the parish for not repairing; or, to dissuade a witness from attending Court and giving evidence; or, to procure false testimony; or to affect and bias witnesses by giving them money; or, to publish a libel, or handbills, with intent to influence the jurors who might try a cause; 10 or, to procure certain persons to be placed upon the jury." 4thly, To do an act, not unlawful in an individual, but with intent either to accomplish it by unlawful means, or to carry into effect a design of injurious tendency to the public. Of this nature are conspiracies to maintain each other, right or wrong; 12 or, to raise the price of stocks or goods by

8

1 The State v. Younger, 1 Dever. 357.

2 Rex v. Macarty, 2 Ld. Raym. 1179; The State v. Rowley, 12 Conn. 101. So, to defraud a trader of his goods by false pretences. Regina v. Kendrick, 5 Ad. & El. 49, N. S. And see Regina v. Button, 12 Jur. 1017; Regina v. Gompertz, 9 Ad. & El. 824, N. S.; Commonwealth v. Ward, 1 Mass. 473.

4 The State v. Buchanan, 5 Har. & J. 317; Commonwealth v. Warren, 6 Mass. 74; Lambert v. The People, 7 Cowen, 166.

5 Rex v. Turner, 13 East, 228.

6 Rex v. Pywell, 1 Stark. R. 402.

7 Rex v. Mawbey, 6 T. R. 619.

8 Rex v. Steventon, 2 East, R. 362. So, to destroy evidence. The State v. De Witt, 1 Hill, S. Car. R. 282.

9 Rex v. Johnson, 2 Show. 1.

10 Rex v. Gray, 1 Burr. 510; Rex v. Jolliffe, 4 T. R. 285; Rex v. Burdett, 1 Ld. Raym. 148.