another of the defendants, subsequently tried.1 But if two be indicted, and one die before the trial; or if three be indicted and one be acquitted and the other die; this is no defence for the other. Nor is it exceptionable that one is indicted alone, if the charge be of a conspiracy with other persons to the jurors unknown.3

§ 98. The wife of one of several conspirators is not admissible as a witness for the others; the acquital of the others being a ground for discharging her husband. Nor is she a competent witness against him. And it is said that if a man and woman are jointly indicted for a conspiracy, proof that they were husband and wife will generally be a complete defence against the charge; on the ground, that being regarded as one person in law, the husband alone is responsible for the act done. But indictments against the husband and wife, for this offence, have been supported, where others were indicted jointly with them.5 And if the conspiracy were concocted before the marriage, their subsequent marriage is no defence.6

§ 99. In some cases, the correspondence between the de

1 Rex v. Tooke, 1 Burn's Just. 823, (Chitty's ed.); The State v. Tom, 2 Dev. 569.

2 The People v. Olcott, 2 Johns. Cas. 301; Rex v. Kinnersley, 1 Str. 193; Rex v. Niccolls, 2 Stra. 1227.

3 The People v. Mather, 4 Wend. 229, 265.

4 Rex v. Locker, 5 Esp. 107; Rex v. Serjeant, Ry. & M. 352; Rex v. Smith, 1 Mood. Cr. Cas. 289; 1 Hawk. P. C. ch. 41, § 13; Commonwealth v. Easland, 1 Mass. 15: Pullen v. The People, 1 Doug. 48, (Mich.) But see the State v. Anthony, 1 McCord, 285. See further, as to the competency of the wife, ante, Vol. 1, § 335, 342, 407, and cases there cited.

5 Commonwealth v. Wood, 7 Law Reporter, 58; Rex v. Locker, 5 Esp.

107.

6 In Rex v. Taylor, 1 Leach, 37, 2 East, P. C. 1010, a servant woman conspired with a man that he should personate her master, and marry her, with intent fraudulently to raise a specious title to his property, and the marriage was accordingly celebrated; for which they were afterwards indicted and convicted, and the conviction was held good.

fendants may be read in exculpation of one of them. Thus, where two persons were indicted of a conspiracy to defraud a third person of his money, by inducing him to lend it to one of them upon a false representation of his titles to certain estates; and the latter had left the country, and the other defended himself on the ground that his co-defendant had made the same representations to him, and led him to believe them to be true, and his titles valid; the correspondence between them on this subject was held admissible, to show that the party on trial was in fact the dupe of the other, and had acted in good faith.1

1 Rex v. Whitehead, 1 C. & P. 67.

EMBRACERY.1

§ 100. THE crime of embracery, which is an offence against public justice, consists in attempting to corrupt, instruct, or influence a jury beforehand, or to incline them to favor one side of a cause in preference to the other, by promises, persuasions, entreaties, letters, money, entertainments, and the like; or by any other mode except by the evidence adduced at the trial, the arguments of counsel, and the instructions of the Judge. The giving of money to another, to be distribu

at

1 An indictment for Embracery may be in this form :

The Jurors, (&c.) on their oath present, that A. B. of

was

in said county of - knowing that a certain jury of said then duly returned, impanelled and sworn to try a cer(describing the Court,) then held and in session acaforesaid, in and for said county of

county of
tain issue in the
cording to law, at

at

between

; and then also

C. D. plaintiff, and E. F. defendant, in a plea of knowing that a trial was about to be had of the said issue in the Court last aforesaid, then in session as aforesaid; and unlawfully intending to hinder a just and lawful trial of said issue by the jury aforesaid returned, impanelled and sworn as aforesaid to try the same; on -, in the county aforesaid, unlawfully, wickedly and unjustly, on behalf of the said E. F. the defendant in said cause, did solicit and persuade one G. H., one of the jurors of said jury returned, impanelled and sworn as aforesaid for the trial of said issue, to appear, attend and give his verdict in favor of the said E. F., the defendant in said cause; and then and there did utter to the said G. H., one of said jurors, divers words and discourses by way of commendation of the said E. F. and in disparagement of the said C. D. the plaintiff in said cause; and then and there unlawfully and corruptly did move and desire the said G. H. to solicit and persuade the other jurors, returned, impanelled and sworn to try the said issue, to give their verdict in favor of the said E. F. the defendant in said cause, the said A. B. then and there well knowing the said G. H. to be one of the jurors returned, impanelled and sworn as aforesaid; against the peace, &c.

2 4 Bl. Comm. 140; 1 Russ. on Crim. 182; 1 Inst. 369, a.; 1 Hawk. P. C. ch. 85, § 1; Gibbs v. Dewey, 5 Cowen, 503.

ted among the jurors, and procuring one's self or others to be returned as talesmen, in order to influence the jurors, are also offences of this description.1 It may also be committed by one of the jurors, by the above corrupt practices upon his fellows. It is not material to this offence that any verdict be rendered in the cause; nor whether it be true or false, if rendered.

§ 101. As this offence cannot be prosecuted under a general charge, but the acts constituting the crime must be specifically set forth in the indictment, the proof on either side will consist of evidence proving or disproving the commission of the acts set forth as done by the defendant.

1 1 Hawk. P. C. ch. 85, § 3; Rex v. Opie, 1 Saund. 301; 1 Russ. on Crim. 182.

FORGERY.

§ 102. In all the United States this offence is punishable by statute; but it is conceived that these statutes do not take away the character of the offence, as a crime or misdemeanor at common law, but only provide additional punishments, in the cases particularly enumerated in the statutes. By the common law, every forgery is at least a misdemeanor, though some, such as forgeries of royal charters, writs, &c. were felonies, and in some cases were punished as treasons.1

§ 103. It seems to have been the opinion of some of the old writers on criminal law, that forgery could not be committed of a private writing, unless it was under seal; but this opinion has long since been discarded; and it is now well settled that forgery, in the sense of the common law, may be defined as "the fraudulent making or alteration of a writing, to

1 This distinction is mentioned by Glanville, the earliest of the common law authors, who wrote in the time of Hen. 2, about the year 1180. He observes that "The crime of falsifying, in a general sense, comprises under it many particular species, as, for example, false charters, false measures, false money, and others of a similar description." And he adds, "that if a person should be convicted of falsifying a charter, it becomes necessary to distinguish whether it be a royal or a private charter," because of the diversity of punishments, which he mentions; the former being punishable as treason, and the latter by the loss of members only. Glanville, b. 14, c. 7. The same distinction is alluded to by Bracton, lib. 3, c. 3, § 2, and c. 6, and in the Mirror, ch. 4, § 12. Falsifying the seal of one's lord was also punishable capitally, as treason; but forgeries less heinous were punished by the pillory, tumbril, or loss of members; as appears from Britton, ch. 4, § 1; Id. ch. 8, § 4, 5; Fleta, lib. 1, c. 22; Id. lib. 2, c. 1; 3 Inst. 169; 2 Ld. Raym. 1464. And see 2 Russ. on Crimes, 357, 358; Commonwealth v. Boynton, 2 Mass. 77.