§ 1333. To attempt to prevent, either by persuasion or intimidation, a witness from attending a trial is not merely a contempt of court,' but may be punishable by indictment, irrespective, it is said, of materiality, or of the prior from atsummoning of the witness by subpoena.3 And so of dissuading witness tending. In an indictment against S. for endeavoring to prevent a witness bound over to testify before a grand jury from appearing and testifying, the indictment in the original case, in which the witness was recognized to appear, need not be recited, nor does the guilt or innocence of the respondent depend upon the sufficiency of that indictment, or of the guilt or innocence of the defendant in the first case. XIV. FABRICATION OF EVIDENCE. § 1334. "Fabricating evidence," it is said by the English Commissioners on the Draft Code of 1879, "is an offence which is not so common as perjury, but which does occur and is sometimes detected. An instance occurred a few years ago on a trial for shooting. at a man, with intent to murder him, where the defence was that though the accused did fire off a pistol, it was not loaded with ball, and the only intent was to frighten. Evidence was given that a pistol ball was found lodged in the trunk of a tree nearly in the line 241; State v. Keyes, 8 Vt. 57. See supra, § 179; and see Whart. Cr. Pl. & Pr. § 954. It is not necessary, in an indictment for attempting to suborn a witness, that the fact, which the defendant attempted to procure the witness to swear to, should be proved specifically; as that fact would only be evidence to show quo animo the bribe was offered, it may be shown by other circumstances. State v. Holding, 1 McCord, 31. For form of indictment, see Stewart v. State, 22 Ohio St. 477. 1 See Whart. Cr. Pl. & Pr. § 965. R. v. Darby, 7 Mod. 100; R. v. Loughran, 1 Cr. & D. C. C. 76; R. v. Chaundler, 2 Ld. Ray. 1398; S. C., under name of R. v. Chandler, 1 Mod. 336; State v. Ames, 64 Me. 38b; State v. Carpenter, 20 Vt. 9; Com. v. Reynolds, 14 Gray, 87; State v. Early, 3 Harring. (Del.) 562; Com. v. Feeley, 2 Va. Ca. 1; Martin v. State, 28 Ala. 71; and see 2 Russ. on Cr. (6th Am. ed.) 595; State v. Keyes, 8 Vt. 57. In Pennsylvania the offence is statutory. Com. v. Phillips, 3 Pittsb. 426. 3 State v. Ames, 64 Me. 386; State v. Keyes, 8 Vt. 57; Com. v. Feeley, 2 Va. Ca. 1; Martin v. State, 28 Ala. 71. As taking a stricter view of pleading, see Brown v. State, 13 Tex. Ap. 358. By § 80 of the New York Penal Code of 1882, the witness receiving the bribe is made indictable for felony. 4 State v. Carpenter, 20 Vt. 9. See Martin v. State 28 Ala. 71. from where the accused fired to where the prosecutor stood. It was afterwards discovered that the ball had been placed in the tree by those concerned in the prosecution, in order to supply the missing link in the evidence. Such an offence is as wicked and as dangerous as perjury, but the punishment as a common law offence (if, irrespective of conspiracy, it be an offence) is only fine and imprisonment." In those of our States, where a common law exists, the offence would probably be regarded as indictable at common law.1 168 1 Supra, § 681. CHAPTER XXI. CONSPIRACY. I. GENERAL CONSIDERATIONS. Conspiracies are indictable when directed to accomplishment of illegal object or use of illegal means, § 1337. Offence to be limited to such cases, § 1338. Where concert is necessary to an offence conspiracy does not lie, § 1339. Conspiracy must be directed to something which, if not interrupted by extraneous interference, will result in an unlawful act, § 1340. Not necessary that all the parties should be capable of committing offence, § 1340 a. Conspiracy analogous to attempt, Mere civil trespass or fraud not enough: otherwise conspiracy to forcibly enter certain premises, § 1350. Conspiracy in fraud of bankrupt or insolvent laws indictable, § 1351. And so of conspiracies to violate lottery laws, § 1352. And so of conspiracies to commit breaches of the peace, § 1353. And so to assault, § 1354. And so to falsely imprison, § 1355. And so of seditious conspiracies, § 1356. And so of conspiracies to commit offences against federal laws, or to defraud the United States, § 1356 a. And so to interfere with civil rights, § 1356 b. And so to utter illegal notes, § 1357. CONSPIRACIES TO USE INDICTABLE MEANS TO EFfect Indifferent END. When the illegality is in the means, the means must be set forth, § 1358. Gradual abandonment of doctrine, IV. CONSPIRACY TO DO AN ACT WHOSE of merger, § 1344. In conspiracies to commit misde meanors, indictment need not detail means, § 1345. Such conspiracy does not merge, § 1346. Conspiracies to cheat are indict able at common law, § 1347. Enough if indictment charge "divers false pretences," § 1348. On the merits a conspiracy to defraud is punishable, § 1349. CRIMINALITY CONSISTS IN THE Acts which derive their indicta- 1. To commit Immoral Acts. So to debauch, § 1363. So to produce abortion, § 1364. 2. To prejudice the Public or Government generally. Conspiracy to forcibly or fraudulently raise or depress the price of labor is indictable, § 1366. Unlawful means should be averred, § 1367. Conspiracy to keep an operative out of employment or induce him to leave is indictable, § 1368. So to engross business staple or to monopolize transportation, § 1369. So to suppress competition at auction, § 1370. So to combine to do wrong by secrecy or coercion, § 1371. So to tamper with an election, § 1372. So to defraud revenue, § 1373. So to publish false report of corporation, § 1374. So to attempt corrupt bargains with government, § 1375. 3. To falsely accuse of Crime or ex- Conspiracy to falsely prosecute is Indictment need not detail im puted crimes, § 1378. Conspiracy to extort money is indictable, § 1379. 4. Conspiracies to obstruct Justice. Such conspiracies are indictable, § 1380. V. GENERAL REQUISITES OF INDICT MENT. Executed conspiracies should be so averred, § 1381. Overt acts not necessary when conspiring is per se indictable, § 1382. May be useful as explaining con spiracy charge, § 1383. Overt acts may be required by statute, § 1384. Fact of their omission may be ex plained, § 1385. Bill of particulars may be required, § 1386. Counts for conspiracy can be joined with counts for substantive offence, § 1387. Two or more persons necessary to offence, § 1388. Prosecution may elect co-conspira tors to proceed against, § 1389. All contributing with knowledge of common design may be joined, § 1390. Acquittal of one defendant evi dence on trial of other, § 1391. Husband and wife without other defendant not sufficient, § 1392. Unknown co-conspirators can be introduced, § 1393. Judgment should be several, § 1394. New trial for one is new trial for all, § 1395. Parties injured must be named if practicable, § 1396. Venue may be in place of overt act, § 1397. VI. EVIDENCE. Proof of conspiracy is inferential, § 1398. Complicity in prior stages unnecessary, § 1399. No overt act necessary, § 1400. Order of evidence discretionary with court, § 1401. Mere cognizance of fraudulent action no conspiracy, § 1402. Material variance as to means fatal, § 1403. System of conspiracy may be proved, § 1404. Co-conspirators are liable for each other's acts, § 1405. Declarations of co-conspirators admissible against each other, § 1406. VII. VERDICT. Verdict acquitting all but one defendant acquits all, § 1407. I. GENERAL CONSIDERATIONS. § 1337. A conspiracy is a confederation to effect an unlawful object by lawful means or by unlawful means a lawful object; and is a misdemeanor at common law. It is on all sides conceded that combinations of two or more persons may become indictable when directed to the accomplishment either of an illegal object, or of an indifferent object by illegal means. The conflict begins when we reach those combinations which are assumed to be indictable, not as aimed at an indictable offence, but 1 See infra, § 1359; supra, § 1118; and see Com. v. Bliss, 12 Phila. 580. Sir J. F. Stephen's definition (Dig. C. L. art. 36) is given infra, § 1347. The late Chief Justice Cockburn proposed the following to the commissioners of the Criminal Code : 66 Conspiracy may be divided into three classes. First, where the end to be accomplished would be a crime in each of the conspiring parties, a class which offers no difficulty. Secondly, where the purpose of the conspiracy is lawful, but the means to be resorted to are criminal, as when the conspiracy is to support a cause believed to be just by perjured evidence. Here the proximate or immediate intention of the parties being to commit a crime, the conspiracy is to do something criminal; and here again the case is consequently free from difficulty. The third and last case is where with a malicious design to do an injury the purpose is to effect a wrong, though not such a wrong as, when perpetrated by a single individual, would amount to an offence under a criminal law. Thus an attempt to destroy a man's credit, and effect his ruin by spreading reports of his insolvency, would be a wrongful act, which would entitle the party whose credit was thus attacked to bring an action for a civil wrong, but it Conspiracies are indictable when di rected to plishment of illegal object or use of illegal means. accom would not be an indictable offence. .... . . . The law has wisely and justly established that a combination of persons to commit a wrongful act with a view to injure another shall be an offence, though the act, if done by one, would amount to no more than a civil wrong." By sec. 284 of the English Draft Code of 1879, declared by the reporters to be a compilation in this respect of the common law, "every one shall be guilty of an indictable offence, and shall be liable, upon conviction thereof, to five years' penal servitude, who conspires with any other person, by deceit or falsehood or other fraudulent means, to defraud the public, or to affect the public market price of stocks, funds, shares, or merchandise, or anything else publicly sold, or who conspires by deceit and falsehood or other means to defraud any person, ascertained or unascertained, whether such deceit or falsehood or other fraudulent means would or would not amount to a false pretence, as hereinafter defined." By sec. 420 it is made indictable to conspire "to commit any indictable offence not punishable with penal servitude or to do anything in any part of the world, which, if done in England or Ireland, would be an indict |