Technical averment of conspiracy. Place where the offence may be tried. Jurisdiction of 5 & 6 Vict. c. 38, s. 1. An indictment for a conspiracy to conceal and embezzle the personal estate of a bankrupt under the 6 G. 4, c. 16 must state the petitioning creditor's debt, the trading, and the act of bankruptcy, and that the party had actually become bankrupt. (q) The technical averment of the agreement and conspiracy, generally used in the indictment, charges that the defendants did conspire, combine, confederate, and agree together;' but it is said that other words of the same import seem to be equally proper. (7) To the counts for a conspiracy may be joined such other counts as the circumstances of the case may seem to require (not charging a felony), though they do not include a charge of conspiracy. (8) It has been holden that in an indictment for a conspiracy the venue must be laid where the conspiracy was, and not where the result of such conspiracy was put in execution. (t) But it was said by the court, that there seemed to be no reason why the crime of conspiracy, amounting only to a misdemeanor, might not be tried, wherever one distinct overt act of conspiracy was in fact committed, as well as the crime of high treason, in compassing and imagining the King's death, or in conspiring to levy war. (u) And a case was cited in which the trial proceeded upon this principle; and in which, though no proof of actual conspiracy, embracing all the several conspirators, was attempted to be given in Middlesex, where the trial took place, and though the individual actings of some of the conspirators were wholly confined to other counties than Middlesex, yet the conspiracy as against all having been proved, from the community of criminal purpose, and by their joint co-operation in forwarding the objects of it, in different places and counties, the locality required for the purpose of trial was holden to be satisfied by overt acts, done by some of them, in prosecution of the conspiracy in the county where the trial was had. (v) The offence of conspiracy might formerly be tried by justices of peace in their Quarter Sessions. In a case where the question of their jurisdiction was raised, no authority being cited either on the one side or on the other, the court decided in favour of their jurisdiction, upon general principles, saying, that a conspiracy was a trespass, and that trespasses were indictable at sessions, though not committed with force and arms. (w) But now by the 5 & 6 Vict. c. 38, s. 1, neither the justices of the peace acting in and for any county, riding, division, or liberty, nor the recorder of conspiracy" which is the regular mode of But even if it had been otherwise, Lord Campbell, Reg. v. Hamp, ante, p. 115. (s) See the judgment of Lord Ellenborough, C. J., in Rex v. Johnson, 3 M. & S. 550. In Reg. v. Murphy, 8 C. & P. 297, counts for libel were joined. (t) Reg. v. Best, 1 Salk. 174. (u) Rex v. Brisac, 4 East, R. 171. (v) Rex v. Bowes, cited in Rex v. Brisac, supra. (w) Rex v. Rispal, 3 Burr. 1320. 1 Black. R. 368. Burn's Just. tit. ConThe point was so decided in an earlier case, Rex v. Edwards, 8 Mod. 320. spiracy, sec. 1. any borough, shall, at any session of the peace, or at any adjournment thereof, try any person or persons, for (inter alia) unlawful combinations and conspiracies, except conspiracies or combinations to commit any offence which such justices or recorder respectively have or has jurisdiction to try when committed by one person.' A count alleged that the prisoners conspired, by divers false pretences, against the form of the statute in that case made and provided, to defraud the prosecutor of his money; and it was objected that the facts ought to have been set out so as to show that the offence intended to be committed was within the jurisdiction of the sessions, by whom the indictment had been tried; but the Court of Queen's Bench held that the count sufficiently showed that the sessions had jurisdiction. (x) A count showing juris. sessions. diction in the Indictment not to be preferred without pre false state As to an indictment for conspiracy not being preferred without previous authorization, see vol. 1. p. 2. On an indictment against the manager and secretary of a joint vious authoristock bank, the indictment containing many counts, some charging zation. that the defendants concurred in making and publishing false Indictment for statements of the affairs of the bank, and others that they conspired publishing together to do so, the prosecutors were put to elect on which set ments of the of counts they would rely, and they having elected to rely on the affairs of a counts for conspiracy, held, that it was not enough to prove that bank. the defendants made and put forth false statements intended and calculated to deceive, unless they had entered into a precedent and fraudulent conspiracy to do so. The chief count relied upon not stating an intent to defraud any particular parties; held, that though there were auditors, whose duty it would be to discover any frauds, that was no answer to the prosecution, if the defendants were party to such conspiracy to deceive them and the directors. But, on the other hand, the jury were told that evidence that the directors were privy to all that was done was very material, with a view to negative such conspiracy, on the part of the defendants, to deceive. (xx) others. On a prosecution against several persons for a conspiracy, the Wife of one wife of one of the defendants has been holden not to be a com- defendant no petent witness for the others, a joint offence being charged, and witness for the an acquittal of all the other defendants being a ground of discharge for the husband. (y) And so it has been held, upon an indictment against the wife of W. S. and others for a conspiracy in procuring W. S. to marry, that W. S. was not a competent witness in support of the prosecution. (*) See 38 & 39 Vict. c. 86, s. 11, post, p. 163, where a husband or wife is a competent witness under that Act. How far the acts or words of one conspirator are An able writer upon the law of evidence lays down the following doctrine with respect to the acts or words of one conspirator being evidence against the others. Where several persons are proved to have combined together for the same illegal purpose, any act done by one of the party, in pursuance of the original against the evidence others. Proof of con cert before declarations of others admissible. concerted plan, and with reference to the common object, is in the contemplation of law the act of the whole party, and, therefore, the proof of such act would be evidence against any of the others who were engaged in the same conspiracy; and, further, any declarations, made by one of the party at the time of doing such illegal act, seem not only to be evidence against himself, as tending to determine the quality of the act, but to be evidence also against the rest of the party, who are as much responsible as if they had themselves done the act. But what one of the party may have been heard to say at some other time, as to the share which some of the others had in the execution of the common design, or as to the object of the conspiracy, cannot, it is conceived, be admitted as evidence to affect them on their trial for the same offence. (a) And, in general, proof of concert and connection must be given, before evidence is admissible of the acts or declarations of any person not in the presence of the prisoner. (b) It is for the court to judge whether such connection has been sufficiently established; but when that has been done, the doctrine applies that each party is an agent for the others, and that an act done by one in furtherance of the unlawful design, is in law the act of all, and that a declaration made by one of the parties, at the time of doing such an act, is evidence against the others. Thus, where Stone was indicted for treason, and one of the overt acts charged was conspiring with Jackson and others to collect intelligence, and to communicate it to the King's enemies in France, &c., after evidence had been given to connect the prisoner with Jackson in the conspiracy as charged, the secretary of state for the foreign department was called to prove that a letter of Jackson's, containing treasonable information, had been transmitted to him from abroad, but in a confidential way, which made it impossible for him to divulge by whom it was communicated and such letter was received in evidence. (c) So, in another case, after evidence had been given of a treasonable conspiracy, in which the prisoner was concerned, it was held that papers found in the lodging of a co-conspirator, at a period subsequent to the apprehension of the prisoner, might be read in evidence, upon strong presumptive proof being given that the lodgings had not been entered by any one in the interval between the apprehension of the prisoner and the finding of the papers, and although no absolute proof had been given of their existence previous to the prisoner's apprehension. (d) But it seems that if such papers had not been proved to have been intimately and immediately connected with the objects of the conspiracy, they would not have been admissible; as, in the same case, a paper containing seditious questions and answers, and found in the possession of a co-conspirator, was not read in evidence, the court (a) 1 Phill. on Evid. 94, 95, 7th ed. See 9th ed. 201. 2 (b) 1 East, P. C. c. 2, s. 37, p. 96. Stark. Evid. 326, and 1 Phill. Evid. 477, citing the Queen's case, 2 Brod. & B. 302. Reg. v. Jacobs, 1 Cox, C. C. 173. Reg. v. Duffield, 5 Cox, C. C. 404. See R. v. Gurney, 11 Cox, C. C. 414, where defendants were indicted for a conspiracy to cheat and defraud by means of a false prospectus of a public company. (c) Rex v. Stone, 6 T. R. 527. (d) Rex v. Watson, 2 Stark. C. 140. R. v. MacCafferty, 10 Cox, C. C. 603; R. v. Meaney, 10 Cox, C. C. 506. doubting whether it was sufficiently connected by evidence with the object of the conspiracy to render it admissible. (e) pursuance of Where, upon an indictment for conspiring to annoy a broker Declarations who distrained for church-rates, it was proved that one of the and acts in defendants, in the presence of the other, excited the persons the conspiracy. assembled at a public meeting to go in a body to the broker's house; it was held that evidence was admissible to show that they did so go, although neither of the defendants went with them, but that evidence of what a person, who was at the meeting, said a few days after the meeting when he himself was distrained on for church-rates, was not admissible. (f) And where an indictment charged the defendant with conspiring with Jones, who had been previously convicted of treason, to raise insurrections and riots, and it was proved that the defendant had been a member of a Chartist association, and that Jones was also a member, and that in the evening of the 3rd of November the defendant had been at Jones's house, and was heard to direct the people there assembled to go to the race-course, where Jones had gone on before with others; it was held that a direction given by Jones in the forenoon of the same day to certain parties to meet on the race-course was admissible; and it being further proved that Jones and the persons assembled on the race-course went thence to the New Inn, it was held that what Jones said at the New Inn was admissible, as it was all part of the same transaction. (g) A number of persons were charged with murder committed by an act done in the course of a conspiracy for the purpose of liberating a prisoner, of which conspiracy he was cognizant: Held, that acts of that prisoner, within the prison, and articles found upon him, were admissible in evidence against the persons so charged. (h) place at them. On an indictment on the 11 & 12 Vict. c. 12, s. 3, which Evidence of makes it a felony to compass, &c., to deprive the Queen of her meetings and crown or to levy war, &c., it appeared that the prisoners from of what took July 26th to August 16th had attended meetings where plans for securing the people's charter and the repeal of the union were organized, and took a prominent part at those meetings: large bodies of men were formed into societies, with class leaders, &c.; some of them were selected and organized as fighting men, and an attempt at insurrection was to be made on the 16th of August; and on that night a great number of the conspirators were found at the several places of meeting previously fixed, provided with arms, &c. A witness stated that at a meeting, at which none of the prisoners were present, he received a leaf of a book from one Bezer, which was to serve as an introduction to a subsequent meeting; and on the 20th of July he attended a second meeting, and produced the leaf; the chairman compared it with a book, and the witness was admitted. The' prisoners were not shown to have been parties to the conspiracy at the time. But it was held that the witness might prove what Bezer said to him when (e) Rex v. Watson, supra. But they held that if proof were to be given that the instrument was to be used for the purposes of the conspiracy, it would clearly be admissible. (f) Reg. v. Murphy, 8 C. & P. 297, VOL. III. Coleridge. J. (g) Reg. v. Shellard, 9 C. & P. 277, Patteson, J. (h) R. v. Desmond and others, 11 Cox, C. C. 146. Admissibility of a handbill. he gave him the leaf, and also what took place at the second meeting, on the ground that the prosecution had a right to go into general evidence of the nature of the combination between the persons assembled, though the prisoners might not be present. () And it having been proved that a large number of armed men were found assembled at a public-house on the 16th of August, the time which had been fixed for the general outbreak, but none of these men had been previously connected with the conspiracy, nor did it appear that the house had ever been. recognized as a place of meeting; it was held that evidence was admissible of what was done at that public-house; because it appeared that on this day there was to be a collection of armed persons. (j) On an indictment for a conspiracy to prevent workmen from continuing in their service as tinplate-workers, it appeared that the workmen had been holding shop-meetings and discussions, and the prosecutor, a manufacturer, had published a placard offering constant employment to tinplate-workers, and after that a handbill was circulated about the town, and copies of it stuck up in the windows of beer-shops and public-houses, and one of them in the window of a public-house frequented by the tinplateworkers, and another at a public-house at which one Peel, Green, and Winters, alleged conspirators, lodged, and the defendants had been continually into those houses whilst the bill was in the windows. The bill was addressed To the members of the several trade societies connected with the National Association of United Trades by the central committee,' and recited that the committee had been called upon for advice by the tinplate-workers of the town to enable them to obtain an established book of prices; and that communications had taken place with the prosecutor about the amount of wages, but that no arrangement could be made with him. The bill was signed by Peel as general secretary, and mentioned Green and Winters as having visited the prosecutor, but did not mention any of the defendants. Erle, J., held that the bill was not admissible as the act of the defendants, either by themselves or as published or recognized by them. You may make a handbill evidence against a man, if I may so say, by retrospective light arising from his conduct. If a handbill says that certain things will be done by certain persons, and that handbill is circulated, where those persons probably saw it, and they do the very thing that the handbill indicates they would do, when that is in evidence, I am of opinion that the bill would be admissible against them; but we are not at that stage yet.' (7) But on the trial of another indictment against Rowlands, Green, Peel, Winters, and others, arising out of the same transactions, where, in addition to the evidence in the previous case, it was proved that Rowlands had been at the Swan whilst the bill was exhibited there, and Peel had been seen 'going in and out, and the bill was in such a situation that he must have seen it; Erle, J., held that it was admissible. If it is evidence against any one of (i) Reg. v. Lacy, 3 Cox, C. C. 517. Platt, B., and Williams, J., who considered Reg. v. Frost, and Rex v. Hunt expressly in point, and refused to reserve the point. See post, p. 150. (k) Reg. v. Duffield, 5 Cox, C. C. 404. |