out. But the judgment was afterwards arrested upon the ground The substance that the indictment did not in any count show what the nature of of the oath the oath was. There ought to have been a distinct allegation of must be set the subject-matter of the oath, showing affirmatively that it was out of the jurisdiction of the magistrate. The question was matter of law for the Court, and though it was not necessary to set out the whole of the oath, still the facts should have been so stated as to enable the Court to form its opinion upon the question whether the oath was within the jurisdiction of the magistrate or not. (u) to all declara Where a prisoner was indicted for making a false declaration The 5 & 6 before a justice in pursuance of the rules of a benefit society, Will. 4, c. 62, which required a loss by fire in certain cases to be verified by such s. 18, applies a declaration; it was objected that the 5 & 6 Will. 4, c. 62, s. 18, tions. did not extend to any declarations except those mentioned in the preamble of that section; but Erskine, J., held that the section extended to all declarations generally. (v) The prisoner was indicted for swearing a false declaration under Declaration in the 5 & 6 Will. 4, c. 62, s. 18, that he had done no act to en- support of an application to cumber certain lands, and that he was in possession of those a building lands, and in the receipt of the rents and profits thereof. The society. declaration was duly sworn and made in support of an application to a building society in 1861, for an advance of 150l. The mortgage deed of 1861 to the building society was produced, but the attesting witness was not called to prove it. The original conveyance of the property to the prisoner was put in. It was objected that the declaration was confirmatory of the mortgage deed, and as that was not proved, it was not shown that the matter sworn was material. It was answered that the declaration was made to confirm the original conveyance, and not the mortgage, which was executed after the declaration. Byles, J., 'I am of opinion that the objection is fatal. The preamble of the 5 & 6 Will. 4, c. 62, s. 18, (w) must be read with the enacting part; and as the deed, which rendered the declaration necessary, is not proved, this indictment cannot be sustained.' (x) A declaration under the Pawnbroker's Act must be proved to have been made within The prisoner was indicted under the 5 & 6 Will. 4, c. 62, s. 12, (y) for making a false declaration before a justice for the borough of Liverpool that she had lost the pawn ticket of certain goods pledged by her. The clerk to the justice could only speak to the handwriting of the justice on the declaration, and, from the great number of these declarations, he could not remember when the jurisdicor where it was made. It was contended that there was no evidence tion of the that the declaration had been made before the justice acting as justice. such or even within the borough; and Gurney, B., held that the objection was good. The justice might at all events have proved that he had never taken such a declaration out of the borough. (~) (u) Reg. v. Nott, 4 Q. B. 768. In the argument it was contended that the defendant on the finding of the jury had been guilty of no offence, and Lord Denman, C. J., said, 'If the statute in terms create an offence, all persons are bound to know it. But if a statute enacts something, without in terms making it an offence, and you would convict a person of misdemeanor in having disobeyed such an enactment, are you not bound to show that the disobedience was wilful, (v) Reg. v. Boynes, 1 C. & K. 65. See (w) Ante, p. 31. (x) Reg. v. Cox, 9 Cox, C. C. 301. (2) Reg. v. Morgan, 1 Cox, C. C. 109. Evidence of making a declaration under the Pawnbroker's Act. Two witnesses necessary to prove the falsity of the declaration. The prisoner was indicted for having at Stroud, in the county of Gloucester, made a false declaration before E. G. Hallewell, a justice of the peace, that he had lost a pawnbroker's ticket. It was opened that the prisoner told the pawnbroker that he had lost the ticket, and the pawnbroker told him he must make a declaration of the loss before a magistrate, and for that purpose handed the prisoner a copy of the ticket and a form, to be filled up according to the Act; the prisoner paid for the form, saying he would go to a magistrate; he returned the same day with the form properly filled up, and with his name and that of Mr. Hallewell attached; but Mr. Hallewell was not able to recollect the fact of the declaration having been made, and therefore was not present; but the pawnbroker identified the declaration. But there was only one witness to prove that the prisoner had not lost the duplicate. Platt, B., As regards the proof of the declaration having been made by the prisoner, I think there may be sufficient evidence to support the indictment, if you can bring home to him a knowledge of its contents; but I am of opinion that the falsity of that declaration must be proved by the oaths of two witnesses as in a case of perjury, otherwise there would be but oath against oath.' (a) (a) Reg. v. Browning, 3 Cox, C. C. 437. The ruling of the learned Baron was right on both points; though an idle doubt has been raised on the first point. If a man in writing admitted that he had made a declaration before a justice under the Act, no doubt can exist that such writing would be sufficient evidence against him; and in this case the prisoner produced a declaration in the form under the Act, signed by himself and the justice, and dealt with it, and obtained the goods by it, as a valid declaration; and it is perfectly clear that this was abundant evidence that he had made that declaration in the manner and with the formalities described in it. In Rex v. Spencer, 1 C. & P. 260, ante, p. 85, Lord Tenterden, C. J., said, 'The courts always give credence to the signature of the magistrate or commissioner; and if his signature to the jurat is proved, that is sufficient evidence that the party was duly sworn; and if the place at which it was sworn is mentioned in the jurat, that is sufficient evidence that it was sworn at that place.' And see Rex v. James, and Brickell v. Hulse, ante, p. 92, and Reg. v. Westley, Bell, C. C. 193, ante, p. 87. 109 CHAPTER THE SECOND. OF CONSPIRACY. (a) THE conspiring to obstruct, prevent, or defeat the course of Descriptions public justice; (b) to injure the public health, as by selling un- of conspiracy. wholesome provisions; (c) or to effect any public mischief (d) as by raising the price of the public funds by illegal means; (e) are offences punishable by indictment. And it appears that an indictment lies, not only wherever a conspiracy is entered into for a corrupt or illegal purpose, but also where the conspiracy is to effect a legal purpose by the use of unlawful means; and this, although such purpose be not effected. (f) And it is laid down in a book of great authority that all confederacies whatsoever wrongfully to prejudice a third person are highly criminal at common law; as where divers persons confederate together by indirect means to impoverish a third person, or falsely and maliciously to charge a man with being the reputed father of a bastard child, or to maintain one another in any matter, whether it be true or false. (g) The conspiracy or unlawful agreement, though nothing be done in prosecution of it, is the gist of the offence. (h) The nature of conspiracy therefore, requires that more than one person should be concerned in it. In many cases an agreement to do a certain thing has been considered as the subject of an indictment for a conspiracy, though the same act, if done separately by each individual without any agreement amongst themselves, would not have been illegal. (i) It has been said that perhaps few things are left so doubtful in the criminal law, as the point at which a combination of several persons, in a common object, becomes illegal. (j) (a) The Acts relating to trade disputes will be found at the end of this chapter. (b) Rex v. Mawbey, 6 T. R. 619,et seq. 4 Black. Com. 136. 1 Hawk. P. C. c. 72, s. 2. (c) Reg. v. Mackarty, 2 Lord Raym. 1179. 2 East, P. C. c. 18, s. 5, p. 823. 4 Black. Com. 162. And see the remarks upon Reg. v. Mackarty in 6 East, 133, 141. (d) See R. v. Boulton, 12 Cox, C. C. 87. (e) Rex v. De Berenger, 3 M. & S. 67. (f) Rex v. Journeymen Tailors of Cambridge, 8 Mod. 11. Reg. v. Best, 2 Lord Raym. 1167. 6 Mod. 185. 1 East, P. C. c. 11, s. 11, p. 462. But an action will not lie for a conspiracy unless it be put in execution, 9 Co. 57. W. Jones, 93. Savile v. Roberts, 1 Lord Raym. 378. And see 8 Mod. 320, that conspiring to do a lawful act, if for an unlawful end, is indictable. See post, p. 110, note (1). (g) 1 Hawk. P. C. c. 72, s. 2. It is not necessary in an indictment for conspiring to charge a man with being the father of a bastard child, to state that the charge was false, Reg. v. Best, post, p. 119. (h) Reg. v. Best, 2 Lord Raym. 1167. (i) By Grose, J., in Rex v. Mawbey, It appears, however, to have been holden that if such persons illegally concur in doing an act they may be guilty of conspiracy, though they were not previously acquainted with each other. (k) It has been laid down that conspiracy is a crime which consists either in a combination and agreement by persons to do some illegal act, or a combination and agreement to effect a legal purpose by illegal means.' (1) And also that the crime of conspiracy is complete if two, or more than two, should agree to do an illegal thing; that is, to effect something in itself unlawful, or to effect, by unlawful means, something which in itself may be indifferent, or even lawful.' (m) Amongst the most flagrant instances of conspiracies against the public justice of the kingdom, may be mentioned a case in which the defendants were charged with a conspiracy, in causing a man to be executed for a robbery, which they knew he was innocent of, with intent to get into their possession the reward offered by Act of Parliament. (n) And it would have been equally a conspiracy, though the defendants had failed in their infamous design, and the man had been acquitted. Indeed one of the more ancient descriptions of conspiracy is a consultation and agreement between two or more to appeal, or indict an innocent person falsely and maliciously of felony, whom accordingly they cause to be indicted or appealed; and afterwards the party is lawfully acquitted by the verdict of twelve men.' (0) But of this description it is observed, that the lawful acquittal of the party grieved does not appear to be required in order to make the offenders guilty of conspiracy. (p) The description of conspirators in the old statute, 33 Edw. 1, st. 2 (sometimes cited as 21 Edw. 1), is that conspirators be they that do confeder or bind themselves by oath, covenant, or other alliance, that every of them shall aid and bear the other falsely and maliciously to indict, or cause to indict, or falsely to move and maintain pleas; and also such as cause children within age to appeal men of felony, whereby they are imprisoned and sore grieved; and such as retain men in the country with liveries of fees for to maintain their malicious enterprizes; and this extendeth as well to the takers as (k) By Lord Mansfield in the case of the prisoners in the King's Bench, Hil. T. 26 Geo. 3. 1 Hawk. P. C. c. 72, s. 2, in the notes. See post, p. 149. (7) Per Alderson, B. Reg. v. Vincent, 9 C. & P. 91, and in Rex v. Seward, 1 A. & E. 713. Lord Denman, C. J., said, 'An indictment for conspiracy ought to show either that it was for an unlawful purpose, or to effect a lawful purpose by unlawful means;' but in Reg. v. Peck, 9 A. & E. 686, the learned Chief Justice, upon this dictum being cited, said, 'I do not think the antithesis very correct;' and in Reg. v. King, 7 Q. B. 782, the same learned Chief Justice said, 'The words "at least" should accompany that statement.' In Rex v. Jones, 4 B. & Ad. 345, 1 N. & M. 78, however, several learned judges gave a similar definition of the crime of conspiracy. And see ante, p. 109, note (f). C. S. G. See R. v. Bunse, 12 Cox, C. C. 316. (m) Per Tindal, C. J., delivering the opinion of all the judges in O'Connell v. Reg., 11 Cl. & F. 155, post, p. 141. (n) Rex v. Macdaniel, 1 Leach, 45. And see Fost. 130. See also ante, vol. 1, p. 662. It should seem that the only objection to this being treated as a conspiracy was that which might arise from its being considered as a crime of the highest degree (i. c., murder, in which the misdemeanor would be merged. (0) 3 Inst. 143. 4 Black. Com. 136. (p) 1 Hawk. P. C. c. 72, s. 2. In the case of Rex v. Spragg, 2 Burr. 998, Serjt. Davy said, 'There is a distinction between a writ of conspiracy and an indictment for conspiracy. In an action the damage is the gist of the action; and therefore the writ and declaration must charge that he was indicted and sustained damage;" but that is not necessary in an indictment, which is for an offence against the public. And this distinction explains Lord Coke's meaning in 3 Inst. 143.' CHAP. II.] To Make False Charges. to the givers, and to stewards and bailiffs of great lords, who by their seigniority, office, or power, undertake to bear or maintain quarrels, pleas, or debates, that concern other parties than such as From which definitouch the estate of their lords or themselves.' tion of conspirators it is said that it seems clearly to follow that not only those who actually cause an innocent man to be indicted, and also to be tried upon the indictment, whereupon he is lawfully acquitted, are properly conspirators, but that those also are guilty of this offence, who barely conspire to indict a man falsely and maliciously, whether they do any act in prosecution of such conspiracy or not; for the words of the statute seem expressly to include all such confederacies under the notion of conspiracy, whether there be any prosecution or not. (9) But it is also said that since it does not appear to have been solemnly resolved that persons offending by a false and malicious accusation against another are indictable upon this statute, it seems to be more safe and advisable to ground an indictment for such offence upon the common law than upon the statute. (r) 111 A conspiracy of this kind appears, therefore, to consist in the The false unlawful agreement to injure a person by a false charge; though charge need And whether the conspiracy be to not be proseit be in no way prosecuted. charge a temporal or an ecclesiastical offence on an innocent person, it is the same thing. (s) A conspiracy to indict a person for the purpose of extorting money from him is a misdemeanor, whether the charge be or be not false. (t) cuted. false charges, the proceed It seems not to be any justification of a confederacy to carry The confedeon a false and malicious prosecution, that the indictment or appeal racy to make which was preferred, or intended to be preferred in pursuance &c., will be of it, was insufficient, or that the court wherein the prosecution equally crimiwas carried on or designed to be carried on had no jurisdiction nal, though of the cause, or that the matter of the indictment did import ings intended no manner of scandal, so that the party grieved was, in truth, in to be instituted no danger of losing either his life, liberty, or reputation. For were defective. notwithstanding the injury intended to the party against whom such a confederacy is formed may perhaps be inconsiderable, yet the association to pervert the law, in order to procure it, seems to be a crime of a very high nature, and justly to deserve the resentment of the law. (u) Therefore, on an indictment for wickedly and unlawfully conspiring to accuse another of taking hair out of a bag, without alleging it to be an unlawful and felonious taking, it was said by Lord Mansfield that the gist of the offence was the unlawful conspiracy to do an injury to another by a false charge, and that whether the conspiracy be to charge a man with criminal acts, or such only as may affect his reputation, it is sufficient. (v) It is observed that it appears not only from the words of the But the constatute, but also from the plain reason of the thing, that no con- federacy must malicious, and federacy whatsoever to maintain a suit can come within the words be false and (q) 1 Hawk. P. C. c. 72, s. 2. (s) Reg. v. Best, 2 Lord Raym. 1167. (t) Rex v. Hollingberry, 4 B. & C. 329. 6 D. & R. 345. S. P. Reg. v. Jacobs, 1 Cox, C. C. 173; but whether the charge be true or false is material on the ques- 3 (u) 1 Hawk. P. C. c. 72, s. 3. |