any punishment whatever. For instance, buying goods without intending to pay for them is not in itself a crime (z), but an agreement between two or more persons to assist each other in doing so would amount to a conspiracy (a). We have just remarked that the gist of the offence is the agreement; a mere intention will not suffice to constitute the crime (b). But if the agreement (the conspiracy itself) can be proved, there is no need to prove that anything has been done in pursuance of it. Of course, the existence of the unlawful agreement is generally evidenced by some overt acts, but these are evidence merely, and not essential if the agreement can be proved otherwise (c). The definition shows a conspiracy to be an agreement to do an unlawful act. It is the indefinite meaning of this word "unlawful" that gives to the crime of conspiracy its wide extent. The following are the most important classes of conspiracy: (1) When the end to be accomplished would be a crime in each of the conspiring parties; in other words, a conspiracy to commit a crime (d). The case of murder is specially provided for by statute, the persons conspiring being liable to penal servitude to the extent of ten years (e). And by the same statute one who solicits, encourages, persuades, or endeavours to persuade, or proposes to any person to murder any other person, is liable to the same punishment (f). Such an offence may be committed by the publication of an article in a newspaper, although not specifically addressed to any one person (g). To constitute a solicitation or persuasion there must be some communication to the person said to have been solicited, but it is not necessary to show that the mind of such person was affected. Even if the communication (z) Assuming, of course, that there is no false representation made. however, p. 236 as to certain cases of this kind. (a) R. v. Orman, [1880] 14 Cox, 381. (b) Mulcahy v. R., [1868] L. R. 3 H. L. at p. 317. (c) R. v. Gill, [1818] 2 B. & Ald. 204. (d) v. Archbold, 1350. (e) 24 & 25 Vict. c. 100, s. 4. (f) Ibid. (g) R. v. Most, [1881] 7 Q. B. D. 244; 50 L. J. M. C. 113. See, cannot be proved to have reached that person the prisoner may be convicted of the common law misdemeanour of attempting to commit the statutory offence (h). (2) Where, with a malicious design to do an injury, the purpose of the conspiracy is to effect a wrong (i), though not such a wrong as, when perpetrated by a single individual, would amount to an offence against the criminal law. may distinguish the following cases: (i) Conspiracies to obstruct, prevent, or defeat the course of public justice, as, e.g., a conspiracy to charge a man falsely with any crime (k); or conspiracies to do anything which will cause a public mischief, as, for instance, to obtain passports by false pretences (1). (ii) Conspiracies to cheat and defraud, as, for example, where one of two partners conspires with a third person to cheat his partner out of partnership property in a manner which would not amount to a criminal offence (m). (iii) Conspiracies to injure a man in his civil rights otherwise than by fraud, as, e.g., a conspiracy to make pirated music for sale and so to deprive the owner of his copyright (n) or a conspiracy to injure a man in his trade by unlawful means (0). It should be noted that the basis of a civil action for conspiracy is damage caused by an unlawful act. The acts of several persons in combination may be unlawful where similar acts by one person could not be; several persons, for instance, may coerce and intimidate where one alone could not do so. Acts causing damage and done in pursuance of a conspiracy may therefore be actionable and also indictable, although, if done by one person, they would not even be actionable (p). But even when damage has resulted (h) R. v. Krause, [1902] 66 J. P. 121. (i) R. v. Warburton, [1870] L. R. 1 C. C. R. 274; 40 L. J. M. C. 22; 11 Cox C. C. 584; R. v. Aspinall, [1876] 2 Q. B. D. at p. 59. (k) Archbold, 1354. (1) R. v. Brailsford, [1905] 2 K. B. 730; see also R. v. Porter, [1910] 1 K. B. 369; 3 Cr. App. R. 237. (m) R. v. Warburton, L. R. 1 C. C. R. 274; 40 L. J. M. C. 22. (n) R. v. Willetts, 70 J. P. 127. (0) R. v. Rowlands, 17 Q. B. 671. (p) Quinn v. Leatham, [1901] A. C. 495. from the acts of a combination, no action will lie unless there has been some unlawful act. Damage resulting from the exercise of legal rights will not be ground for an action merely because their exercise was due to express malice (q). We have already noticed the case of trade conspiracies and referred to an exception to the common law doctrine in such matters (r). Conspiracy is a misdemeanour, punishable by fine or imprisonment, or both; in the case of conspiracy to murder by penal servitude to the extent of ten years (s). This crime falls within the provisions of the Vexatious Indictments Act (t). It should be noticed that the acts and statements of any of the conspirators in furtherance of the common design may be given in evidence against the others, although they were not present at the time when such acts were done or words spoken. But before this can be done evidence of the existence of the conspiracy must first be given (u). If the purpose of the conspiracy is a felonious one and actually carried out, the conspiracy is merged in the felony; so that after a conviction for the felony the defendant cannot be tried for the conspiracy. But if the defendant is indicted for the conspiracy, he is not entitled to an acquittal because the facts show a felony. Under such circumstances, however, he cannot be subsequently tried for the felony unless the Court has discharged the jury from giving a verdict on the misdemeanour (w). CHAPTER VIII. OFFENCES AGAINST PUBLIC MORALS, HEALTH, AND GOOD ORDER. UNDER this head will be noticed a somewhat miscellaneous class of offences which are considered to affect the public rather than the individual; though some of them at first sight appear rather to concern particular persons, e.g., bigamy. They are, however, punishable not upon the mere ground of the immorality of the offender, but in order to prevent the injury to public morality which would result if their com mission were unchecked. BIGAMY. The offence consists in marrying a second time while the defendant has a former husband or wife still living (x). The second marriage is void, and constitutes a felony; and this whether the second marriage takes place in the United Kingdom or elsewhere, either within or without the King's dominions (y). There are certain cases which are excepted by the statute which declares the second marriage generally felonious; these excepted cases are: (i) A second marriage contracted elsewhere than in England or Ireland by any other than one of His Majesty's subjects (z). (ii) A second marriage by one whose husband or wife has been continually absent from such person for the last seven years, and has not been known by such person to be living (x) 24 & 25 Vict. c. 100, s. 57. (y) R. v. Russell, [1901] A. C. 446; 70 L. J. K. B. 998. within that time (a). Where absence for seven years is proved it is for the prosecution to show that the prisoner knew that his or her wife or husband was alive, and failing proof of such knowledge he is entitled to be acquitted (b). (iii) A second marriage by one who, at the time of such second marriage, was divorced from the bond of the first marriage. (iv) A second marriage by a person whose former marriage has been declared void by the sentence of any Court of competent jurisdiction, as, for instance, in a suit for nullity of marriage (c). In none of these cases is the second marriage a felony; but in the second case it is a mere nullity. It is no defence to the charge of bigamy that the subsequent marriage would in any case have been void, as for consanguinity or the like (d). But if the first marriage were void, the second will not be bigamous (e). There was at one time much conflict of judicial opinion as to whether a bona-fide belief by a prisoner at the time of the second marriage that her husband was then dead, such belief being based on reasonable grounds, was a sufficient defence although the period of seven years mentioned in the statute had not expired. In consequence of this conflict of opinion, Mr. Justice Stephen, who tried a prisoner on this charge, stated a case for the opinion of the Court for Crown Cases Reserved, after directing the jury that a belief in good faith and on reasonable grounds by the prisoner that her husband was dead was no defence. In this case the husband had not been heard of for five years preceding the second marriage, but reappeared shortly after it. The jury convicted the prisoner, stating, however, that they thought that she in good faith and on reasonable grounds believed her husband to be dead at the time of the second marriage. The Court was divided in opinion, but the majority of the judges decided, and it is (a) 24 & 25 Vict. c. 100, s. 57. (b) R. v. Curgerwen, [1865] L. R. 1 C. C. R. 1; 35 L. J. M. C. 58. (d) R. v. Allen, [1872] L. R. 1 C. C. R. 367; 41 L. J. M. C. 101. |