tions. Thus an indictment for a conspiracy alleged that the defendants, fraudulently contriving to procure the election of certain persons as directors of an insurance company, and thereby cause themselves to be employed in the service of the company, fraudulently conspired to induce persons, by issuing to them fraudulent policies of insurance, to appear at the annual meeting of the company and vote for directors. It was held, that while the ultimate object of the respondents, that is, to procure themselves to be employed by the company, was lawful, the means were fraudulent, immoral, and illegal, it appearing that the defendants had agreed with the insured that the policies should be held and treated as mere nullities for every purpose but that of authorizing the holders to vote thereon at the annual meeting, although the defendants agreed also that the policies should be duly approved by the requisite numbers of directors, not cognizant of the intended fraud, upon applications in regular form, and although the policies might be binding on both parties.1 So to defraud rev § 1373. The general features of § 5440 of the Revised Statutes of the United States, based on the 30th section of the act of Feb. 3, 1867, have been already noticed. It may be here particularly observed that a conspiracy to defraud the government of revenue is indictable under this statute.3 enue. State v. Burnham, 15 N. H. 396. not apply. It was further said that a Supra, § 1356 a. conspiracy to defraud the government, though it may be directed to the revenue as its object, is punishable by the general terms of the statute, which makes penal all conspiracies to defraud the United States, and cannot be said, in any just sense, to arise under the revenue laws. See comments, supra, § 1356 a. 3 U. S. v. Boyden, 1 Low. 266; U. S. v. Smith, 2 Bond, 323; U. S. v. Rindskopf, 6 Biss. 259; U. S. v. Babcock, 3 Dill. 581. For conspiracy to import goods without duty, see U. S. v. Graff, 14 Blatch. 381; and see U. S. v. Miller, 3 Hughes, 553; U. S. v. Walsh, 5 Dill. 58. Supra, § 1356 a. In U. S. v. Hirsch, 100 U. S. 32, it was held that the statute above noticed (§ 5440 Rev. Stat.) was not a revenue law, and that a person indicted thereunder for defrauding the revenue is entitled to plead the limitation of Revised Statutes, section 1044, of three years, and that the limitation of section 1046, of five years, for "any crime arising under the revenue laws," does In U. S. v. Donan, 11 Blatch. 168, it was said by Benedict, J.: "The 30th section of the Act of March 2, 1867," creates an offence which may be cɔmmitted without any other action on the part of the accused than that of conspiring with another to commit an offence against the laws of the United States, or to defraud the United States. The unlawful agreement is, therefore, § 1374. We now recur to the same distinction as was announced in discussing cheats at common law. Mere bragging So to pub lish a false statement fairs of a banking or trading declarations, being matters of opinion, are not indictable; when, however, there is a combination to induce, by means of artful falsification of fact, the public to take stock in a worthless concern, then the offenders are guilty of conspiracy. Thus, in an English case, tried 1858, the directors of a joint stock bank, knowing it to be in a state of insolvency, issued a balance sheet showing a profit, and the gist of the offence which this section intended to create. The requirement that some act to effect the object of the conspiracy be done by some one of the conspirators is intended to afford a locus poenitentiae. Until some act be done by some one of the conspirators to effect the object of the unlawful agreement, all parties to the agreement may withdraw, and thus escape the effect of the statute. After such an act all are liable to the penalty. The act to effect the object of the conspiracy, which the statute calls for, is not designated as an overt act, and was not intended to be made an element proper of the offence. The offence is the conspiracy. Some act by some one of the conspirators is required, to show, not the unlawful agreement, but that the unlawful agreement, while subsisting, became operative. The offence of conspiracy is committed when to the intention to conspire is added the actual agreement; and this intent to conspire, coupled with the act of conspiring, completes the offence intended to be created by the statute, notwithstanding the requirement that the prosecution show, by some act of some one of the conspirators, that the agreement went into actual operation. "If then an indictment correctly charges an unlawful combination and agreement as actually made, and, in addition, describes any act by any one company. of the parties to the unlawful agreement, as an act intended to be relied on to show the agreement in operation, it is sufficient, although, upon the face of the indictment, it does not appear in what manner the act described would tend to effect the object of the conspiracy." For statute see supra, § 1356 a. In an English case determined in 1876, the second count alleged that the defendants, who were directors, etc., of a new company, had conspired to deceive the members of the committee of the Stock Exchange, and to induce them, contrary to the intent of certain of their rules, to order a quotation of the shares of the company in the official list of the Stock Exchange, and "thereby to persuade divers liege subjects, who should thereafter buy and sell the shares of the said company, to believe that the said company was duly formed, and had complied with the said rules, so as to entitle the company to have their shares quoted in the official list of the Stock Exchange." It was ruled (affirming the decision of the Queen's Bench Division below), that the second count contained averments which, if taken to be proved in a sense adversc to the defendants, sufficiently supported the charge of criminal conspiracy. R. v. Aspinall, 36 L. T. Rep. (N. S.) 297; 13 Cox C. C. 563; L. R. 1 Q. B. D. 730. See Whart. on Cont. § 376. thereupon declared a dividend of six per cent. They also issued advertisements inviting the public to take shares, upon the faith of their representations that the bank was in a flourishing condition. On an ex officio information filed by the attorney-general they were found guilty of a conspiracy to defraud.1 So to attempt corrupt bargains with or for gov § 1375. It has been already observed, that a conspiracy to corruptly procure office is indictable. In an early Virginia case it was held indictable for two justices, in whom was vested certain county nominations, to agree that one would vote for A. as commissioner, if the other would vote for B. as clerk. But if this principle be logically extended, few legislative or executive compromises could stand.* ernment. 1 R. v. Brown, 7 Cox C. C. 442; R. v. Esdaile, 1 F. & F. 213. See R. v. Gurney, 11 Cox C. C. 414. Supra, § 1349. 2 R. v. Pollman, 2 Camp. 229. Supra, § 1371. As to bribery, see infra, § 1858. 3 Com. v. Callaghan, 2 Va. Cas. 460. 4 See supra, § 1360. This principle, however, was declared by the late Judge B. R. Curtis, in his address on behalf of the Whig representatives to the people of Massachusetts, to apply to the coalition, in 1851, of the Free Soil and Democratic representatives in the Massachusetts legislature; the purpose of which coalition was the election of Democrats to State offices and a Free Soiler to the U. S. Senate. He thus characterizes it: "But this is not a coalition. A compact between two distinct parties, having different political principles, for the purpose of dividing public offices between them,-a compact to do this by electing a man for governor in whom the one party does not confide,-is not a coalition, but a factious conspiracy. And when such a compact is made between those who have merely a delegated authority, held in trust, to be used, under the sanction of an oath to place in office only those in whom the trustees do confide, it is a factious conspiracy to violate a public trust, and as such criminal, not only in morals, but in the law of the land. It is true the statute of the State has not defined this offence, as it has failed to do others. . But the common law which pervades society, and enters into the relations of life both public and private, with its benign but bracing influence, deems such an abuse of a public trust a misdemeanor, punishable by indictment. And there is high authority that a bargain like this, even when made by single persons, and in reference to subjects of far less public concern than this, is an indictable offence. In the year 1825, a case came before the highest criminal court of one of our sister States, wherein it appeared that A. and B. were justices of the peace, and as such had the right to vote in the county court for certain county officers; that they agreed together that A. would vote for C. for commissioner, in consideration that B. would vote for D. for clerk; that they voted in pursuance of that agreement. The statute of the State, like ours, did not reach the case. But their common law, the same as ours, declared: The defendants were justices of the peace, and as such held an office of trust and con To constitute a conspiracy in such cases it is necessary that there should be a corrupt intent to contravene either a statute or a settled provision of the common law. But in any view a conspiracy to bribe a public officer is indictable." fidence. In that character they were called upon to vote for others, for offices also implying high trust and confidence. Their duty required them to vote in reference only to the merit and qualifications of the officers; and yet, upon the pleadings in this case, it appears that they wickedly and corruptly violated their duty, and betrayed the confidence reposed in them, by voting under the influence of a corrupt bargain, or reciprocal promise, by which they had come under a reciprocal obligation to vote respectively for a particular person, no matter how inferior their qualifications to their competitors. It would seem, then, upon these general principles, that the offence in the information is indictable at common law.' Com. v. Callaghan, 2 Va. Cas. 460. "This is the manly and clear respouse of the common law,-the inheritance of our fathers and ourselves, not only in that State, but wherever it prevails. And now what are the differences between that crime and the case we lay before you? The parties to that bargain were the electors in the court of a county; the parties to this bargain were electors in the Legislature of Massachusetts. The parties to that bargain were two individuals, and their compact controlled two votes; the parties to this bargain were numerous, and their compact controlled many votes; and every reflecting man must see that a conspiracy becomes more VOL. II.-15 criminal the more persons it embraces, and the more power it wields. The parties to that bargain made it 'without reference to the qualifications of the candidates ;' the parties to this bargain entered into it with an open declaration that one of the candidates was distrusted by one party, and the person who has to be voted for by the other party was not even selected, nothing being known, except that he was not to act on the principles which one of the parties who were to vote for him had long professed to hold dear. The subjects of the bargain in that case were a county clerk and a county commissioner; the subjects of this bargain were the governor of Massachusetts and one of its senators in the Congress of the United States. And finally, in that case, it does not appear that the officers voted for by the criminals were actually elected; while in this case it is known that this corrupt agreement made one man governor, and caused another to be declared elected a senator in Congress." Life and Writings of B. R. Curtis, vol. i. pp. 143-145. In Marshall v. R. R., 16 How. U. S. 336, the court said, though this was not the point before them, "that what in the technical language of politicians is termed long-rolling, is a misdemeanor at common law, punishable by indictment." 1 People v. Powell, 63 N. Y. 88. 225 3. To falsely accuse another of Crime, or use other Improper Means to injure his Reputation, or extort Money from him. Conspiracy to falsely prosecute is indictable. § 1376. A conspiracy to falsely charge a man with any indictable offence has frequently been held the subject of indictment; but it is not an indictable offence for two or more persons to consult and agree to prosecute a person who is guilty, or against whom there are reasonable grounds of suspicion. The proof of guilt, however, must be confined in the latter case to the offence charged." Conviction no bar. §1377. Even the legal conviction of an innocent man is no bar to an indictment against those who by such combination procured the conviction. And an indictment was sustained against three defendants for a conspiracy in combining to arrest one C. C., a resident of the county of Philadelphia, on the false charge of deserting the army of the United States, in the year 1847; and after arresting him, in forcibly carrying him to New York, for the purpose of obtaining the reward of $30, which had been offered by the government for the arrest and safe delivery of a soldier who had deserted by that name.5 It has been held a conspiracy to combine to induce a tavernkeeper to furnish beer on Sunday, and thus to violate the Sunday liquor law." 1 Foster, 130; 1 Hawk. c. 72, s. 2; Ashley's Case, 12 Co. 90; R. v. McDaniel, Leach, 45; R. v. Spragg, 2 Burr. 993; R. v. Best, 2 L. Raym. 1167; Salk. 174; Com. v. Tibbetts, 2 Mass. 536; Elkin v. People, 58 N. Y. 177; State v. Buchanan, 5 Har. & J. 317; Johnson v. State, 2 Dutch. 313; Slomer v. People, 25 Ill. 70. See Davenport v. Lynch, 6 Jones, N. C. 545. As to extorting hush money see R. v. Hollingberry, infra, § 1379. That a conspiracy to slander is indictable see State v. Hickling, 41 N. J. L. 209, 1879. Infra, § 1379. Accusations for the purpose of extortion are elsewhere discussed. Infra, § 1664. 2 R. v. Best, 1 Salk. 174; 2 L. Raym. 1167; Com. v. Tibbetts, 2 Mass. 536; Com. v. Leeds, 9 Phila. 569; Com. v. Dupuy, Brightly, 44. See as to associations to detect crime, Wh. Cr. Pl. & Pr. § 668; People v. Saunders, 25 Mich. 120. 3 Com. v. Andrews, 132 Mass. 263. 4 Com. v. M'Clean, 2 Parsons, 367. 6 Ibid. A count in an indictment for conspiracy, averring that defendants corruptly charged one with being the father of a child to be born bastard, and did various acts to effect the object of the conspiracy, is good. Johnson v. State, 2 Dutch. 313. 6 Com. v. Leeds, 9 Phila. 569. |