TR. 734; 1 Leach, 497; 1820. Gilles, R. & R. 366, n.; 1840. Stewart, 12 A. & E. 773.) abundantly sufficient to have supported a conviction of a sole de So in Howell's Case there were facts fendant on similar grounds, if they had been properly laid in the indictment; but the indictment seems to have failed to show that the girl girl was not previously of bad character. Bramwell, B., is reported to have ruled that any unlawfulness in the state of things proposed to be brought about would suffice, according to Lord Den man's definition of conspiracy (e), and that, since agreements for prostitution or claims for goods supplied for purposes of prostitution are illegal in the sense that they cannot be enforced, prostitution itself is a sufficiently illegal state of things to render indictable a combination to bring it about. It is conceived that the expressions attributed to Bramwell, B., cannot be correctly reported. They would appear to involve the criminality of every assignation with a woman of bad character. No such doctrine is found in any earlier case; nor is it involved in the early precedents of indictments for adultery in times when adultery was both an ecclesiastical and a temporal offence. (E. g. Tremayne's Prec. pp. 209, 213.) An act was passed by the Long Parliament in 1650 (c. 10, p. 121, of Scobell's Ordinances), in the sense of the expressions reported in Howell's Case; but it was not continued by Charles II. § 10. Examination of Cases on Combination to defraud. The history of combinations to defraud, and the manner in which, after certain kinds of cheats had ceased to be indictable when committed by one person, they continued to be indictable when done or planned by persons in combination, have already been described; and it remains to consider briefly what is the nature of the fraud or cheat which will suffice to make criminal the combination to effect such a fraud or cheat. The definitions of fraud and cheat belong to the general law of crimes, and they cannot here be discussed. The essence of a cheat appears to consist in (i) a false representation by the defendant by words, instruments or conduct (active or negative) that a certain state of facts (other than a condition of his own mind) exists or does not exist; (ii) the fact that a belief in the truth of the representation had an effect on the prosecutor as a material inducement to, or a material condition of, his consenting or not refusing to part with a right or forego a claim or undertake a liability of pecuniary value or consequence; and (iii) the fact that the false representation was intended by the defendant to have that effect, or, to use Bentham's phrase (1 Morals and Legisl. 141), that (e) See as to this, inf. & 14. the prospect of producing that effect "constituted one of the links in the chain of causes by which the person was determined" to make the false representation. In other cases the generality of this principle has been guarded by limitations; but in the crime of combination to defraud only one limitation appears to remain, namely, that the intended fraud must involve something which amounts or would, but for restrictions imposed by statutes made alio intuitu, amount to a wrong for which there is a civil remedy at law or in equity. It has been recently determined (1870. Warburton) that a merely equitable wrong will suffice; and it was ruled in 1858 (Timothy, Channell B.) that a combination to defraud by false verbal representations of the solvency of a bank was criminal, although by reason of Lord Tenterden's Act (9 Geo. 4, c. 14) the defendants might not have incurred any civil liability. A case (1833. Levi) in which a "knock out" at an auction was held indictable, may be thought to have gone to the farthest extent which is compatible with the application of any principle. It may be explained on the ground that, had the auctioneer known of the combination, he would not have knocked down the goods to any of the persons concerned in it;--that his consent to the transfer of property was obtained by a false appearance of competition. It has been uniformly held in modern times that a false pretence may suffice for conspiracy, which would not suffice for the statutory crime of obtaining by false pretences, but it may be doubted whether some of the same limitations which have been applied in the construction of the statute do not apply in conspiracies to defraud. Such are a. The rule, that the prosecutor must have intended to part with his whole right of property in the thing:—e. g. to obtain by false pretences the bailment of a horse, intending never to pay the hire, is not an obtaining of the horse by false pretences; b. The rule, that a promise (as distinguished from a representation of ability to pay &c., or of existing foundations of a future ability to pay &c.) will not suffice; c. The rule, that the pretence must be of a definite and "triable " state of facts, and not merely false and exaggerated praise or dispraise. In general, it would seem that in cases of false pretences under the statute, it is for the court to say whether the proposed deceit amounted to a fraud in law, and for the jury or other judge of facts to say whether the thing was obtained by it; but in a conspiracy to defraud, the only question for the jury seems to be whether the defendants meant to use the fraud for the purpose of obtaining the thing. Here a question arises which goes to the root of the doctrine of conspiracy. Suppose a case in which the purpose to cheat is plain, but the proposed deceit is such that it could not have any effect for deceiving the persons intended to be defrauded. Here, if the essence of the conspiracy is merely in the intent, the agreement for such a purpose must be sufficient, and this view is per haps supported by some of the ancient cases of treason. other hand, to treat such a combination as criminal would be like On the indicting a man or several men for attempting or conspiring to murder another by conjurations. Such a doctrine appears nevertheless to follow from those cases or dicta in which it has been ruled or suggested that combinations to "injure," "predjudice," "intimidate" or "coerce," are criminal irrespectively of the criminality of the means to be used. But if on the other hand the law of conspiracy is, as its history seems to indicate, merely an extension of the law of attempts to commit crimes, then the result seems to follow that the proposed means must be such as might probably be effectual for the proposed end. On the other hand, it is not probable that all the refinements of the law of attempts would be applied to conspiracy. A conspiracy to pick a man's pocket would probably be held criminal, although there was nothing in the pocket. A conspiracy to kill a man by shooting through the partition of a room in which he was supposed to be might possibly be held criminal, although if in fact the man were not in the room, such an act might not be an attempt to murder him. So a combination to defraud by means likely to defraud would probably be held criminal, although there were circumstances which would prevent the use of the means in the particular case from being punishable as an attempt. (Cp. 1849. Cluderay, 1 Den. 514. But see 1871. Taylor, as to evidence of a conspiracy to attempt a crime.) Under this part of this head fall cases of combination to cheat:1674. Thody: by false dice. 1704. Orbell: by a bet on a race in which a runner had been bought. 1744. Robinson: by personation. 1782. Hevey: by a sham bill of exchange. 1803. Brisac: by officers by defrauding the government by false vouchers. 1808. Roberts: by passing with tradesmen as persons of fortune. 1816. Pywell: by pretences of the soundness of a horse. 1818. Gill: by false pretences. 1819. Anon.: by means not described. 1824. Whitehead: by false pretences. 1826. Cooke: by false pretences. 1826. Serjeant: by perjury and false pretences to procure a youth of seventeen to marry a woman of ill fame, with intent to defraud him of his property. 1827. Mott: by fabricating shares. 1831. Fowle: by means not stated. (Ruled too general.) 1832. Jones: by putting away the goods of an insolvent trader. (Ruled not indictable. But see 1857, Hall, infra.) 1833. Bloomfield v. Blake: by pretence of legal process. 1833. Levi: by knock-out at an auction. 1834. Richardson: by removing goods pending an order for immediate execution. (Ruled not indictable.) 1836. Hamilton: by false pretences. 1839. Peck: by obtaining goods without paying for them. (Held too general.) 1841. Steel; by false pretences. 1844. Ward: by false pretences. 1844. Blake: by false declarations for the customs. 1846. Gompertz: by false pretences. 1847. Sydserff: by means not stated. (Held good.) 1849. Wright: by false affidavits for procuring transfer of stock. 1852. Rycroft: by means not stated. 1852. Read: by pretences as to soundness of horses. 1853. Yates: by false pretences and extortion. 1854. Carlisle; by false representations. 1856. Bullock: by false pretences. 1857. Stapylton: by publishing fraudulent accounts of a bank. 1858. Timothy: by false representations of profits of a business. 1858. Esdaile (or Brown): by false representations of the solvency of a bank. 1859. Absolon: by transferring railway tickets which were not transfer able. 1860. Hudson: by fraudulent gambling. 1864. Latham: by false pretences. 1864. Knowlden: by means not stated. 1865. Barry: by falsely pretending to an insurance office that certain goods had been burnt. 1865. Burch: by publishing a fraudulent balance sheet. 1869 Lewis: by a mock auction. 1869. Gurney: by a fraudulent prospectus of a projected company, and by false accounts (24 & 25 Vict. c. 96, s. 94). (Acquitted.) 1870. Warburton: by false accounts between partners. § 11. Examination of the Cases on Combination to injure Individuals (otherwise than by Fraud.) The origin of the suggestion, that combinations to injure private persons may be criminal, although the proposed means of injury would not be criminal apart from combination, may be traced partly to a misapprehension of the ground of the determination in Starling's Case (1665), partly to an application of the analogy of the law of combinations to defraud, partly to the passage in Hawkins (1, 72, 2; published 1717), in which it was stated, "there can be no doubt but that all confederacies whatever wrongfully to predjudice a third person, are highly criminal at common law." Hawkins' authorities for this proposition consist of seven cases on maintenance and conspiracy (properly so called) within the ordinances of conspirators (1354. Art. of Inq.; 1607. Lord Gray of Groby; 1611. Poulterers' Case; 1663. Timberley; 1678. Armstrong; 1699. Savile v. Roberts, on the civil writ of conspiracy, and 1705. Best), and of Starling's Case (1665), which is stated below (f). In none of these cases is there any decision which tends to establish his proposition, but at most some arguments of counsel, and some general expressions attributed to the courts, which will be found examined below (§ 14, n.). It is now to be inquired how far this doctrine is confirmed or negatived by decisions; and for this purpose it is necessary to enter into greater detail than has been necessary in former subsections. And first with respect to express decisions: 1351. Anon. Combination for false imprisonment and extortion held not indictable as a conspiracy; being only damage and oppression. See the case in App. II. inf. 1665. Starling. In the Case of Brewers of London (sup. ? 7), the jury convicted the defendants of having confederated to depauperate the farmers of excise. During several debates on motion in arrest of judgment, it was argued for the crown that this was sufficient; but no intimation appears in any report that the court acceded to this view. On the contrary, it was long before they were able to determine that the judgment ought to stand; and they at length supported it only on the ground that the indictment alleged that the excise had been settled on the king as a part of his revenue, and that to depauperate the farmers must have the effect of disabling them from rendering him his revenue. In Daniell's Case (1704), Lord Holt, after agreeing that it was not criminal to combine not to deal with a tradesman, and denying that it was not criminal to combine to rob or murder, explained the exceptional ground on which the judgment in this case rested (sup. 7). Starling's Case, being after verdict, appears to amount to a decision that a combination to impoverish a man (other than the king) by means not criminal in themselves, is not criminal. See the case in App. II. inf. 1685. Salter. Here the indictment was quashed on motion, but no inference can be drawn from this case, because there was plainly neither any indictable offence, nor any combination. The words " per conspirationem were inserted, according to the practice of that date, merely by way of aggravation, or as being equivalent to "contriving." 1719. Cope. Here the defendants had bribed a cardmaker's apprentice to spoil his master's cards by putting grease into them. It seems clear that at that date such an act was punishable in the apprentice (see 1727. Edmonds, 1 Sess. Ca. 288, p. 357; and by Powell and Gould, J. J., in 1704. Daniell; and cp. 1848. Button; and 5 Eliz. c. 4, s. 35); and if so, then according to the principles explained in R. v. Higgins (1801. 2 East, Rep. 5), the conduct of each of the defendants was criminal independently of the conspiracy. 66 1725. Edwards. Here the combination was to charge the inhabitants of a parish to their prejudice, by bribing a poor man settled there to marry a poor woman with child of a bastard. It was urged by Serj. Comyns for the crown (apparently citing from Hawkins), that a bare contrivance to act to the prejudice of another is criminal." The case was twice argued; first on motion to quash the indictment, and again on demurrer. The King's Bench refused to quash the indictment on motion, because it was not the practice to quash indictments on motion in cases of any doubt, if an ill design appeared in the defendants. Lord Raymond, C. J., said, Indictments for conspiracies are not allowed to be quashed, where the thing that is conspired is in its own nature criminal. But where it plainly appears by the indictment that the act which was done to the prejudice of another was a lawful act, the court hath a discretionary power to quash.. If it be doubtful whether the act done be criminal or not, yet if it be done with an ill intent or design, we will not quash 66 (f) His later editors add-1719. Cope: 1721. Tailors of Cambridge; 1725. Edwards; which are also considered below. |