« AnteriorContinuar »
criminal design; and afterwards to allege, that the said defendants, in pursuance of the said conspiracy, combination, confederacy, and agreement, did certain acts set forth in the indictment (d). And in such cases it seems, that the general averment that the defendants did conspire, &c. to accomplish an object apparently criminal, is sufficient, without shewing in what manner and by what means (e) the conspiracy, &c. was produced. And since it is the conspiring which the law regards as criminal, the offence is complete and consummate by conspiring, though no act should be founded upon it (f); and, therefore, in strictness, it is unnecessary to allege any overt act done in pursuance of the criminal design (g). But since the conspiracy itself, (to use the words of Mr. J. Grose,) (h) is a matter of inference deduced from criminal acts, done in pursuance of an apparent criminal purpose in common between the defendants, and therefore the indictment for a conspiracy bears a resemblance to an indictment for treason, it is, at all events, proper to allege one or more overt acts done in prosecution of the confederacy on which the indictment is founded.
In an indictment for conspiring to charge a man with any offence, it is not necessary to allege, that the defendants conspired falsely to indict the party, for his innocence will be presumed till the contrary appear (i); and for the same reason, the indictment need not allege that the party is innocent (k).
But unless the object of the conspiracy be criminal, it seems to be necessary to shew an intention to accomplish it by some improper means.
Thus, it is necessary, in an indictment against overseers and others, for conspiring to marry paupers, in order to rid the parish of the burthen of maintaining them, to shew that it was brought about by illegal means, by violence, threats, or some other sinister means, promises, or bribe, without the voluntary consent or inclination of the parties themselves (7). For since the act of marriage is in itself lawful, a conspiracy to procure it can only amount to a crime, by the practice of undue means; and this is said to have been frequently ruled by the judges (m). But where the indictment stated, that the marriage was procured by threats and menaces, it was holden to be sufficient, without averring it in terms to have been against the will or consent of the parties, though that should be proved upon the trial (n). But in these cases, the question which has been chiefly considered, is, whether the marriage would effectuate that intention usually charged upon the defendants, viz. to exonerate their own parish, and to throw the burthen upon another.
In the case of the King v. Edwards (o) and others, judgment was arrested upon an indictment for conspiring together, and giving the husband money to marry a pauper, who was an inhabitant of B. in order to defeat her settlement in that parish, because it was not averred, that she was last legally settled in B. And it has been holden necessary in such an indictment to allege, that the
Per Buller, J. R. v. Fowler and others, East, P. C. 461.
(m) R. v. Parkhouse, &c. cited, East, P. C. 462.
(n) R. v. Parkhouse, &c. cited, East, P. C. 462.
(0) 8 Mod. 320.
husband was a poor person, and unable to maintain him
self and his wife (p).
In Tremayne's Pleas of the Crown (9) is a precedent of an indictment against Allibone and others, for conspiring to persuade one Hilliard to marry a woman much in debt, by representing her to be a woman of great property, and afterwards to induce the said Hilliard to execute bonds to a stranger.
Also a similar indictment (r), for conspiring to marry a rich infant, of the age of 13 years, to the daughter of one of the defendants, and to effect their purpose by representing to the young man that the daughter was very rich, and by threatening to transport the daughter, unless she complied. And another precedent of the same kind (s), for a conspiracy to bring about a marriage between a rich heir and a woman of bad character, by representing her as of good character and large property. And, therefore, unless the object of the conspiracy be manifestly criminal, it seems that the means should be shewn to be unlawful.
In an indictment for conspiracy to prevent the course of justice by producing a false certificate, under the hands of justices of the peace, that a road is in repair, it is not necessary to allege, that the defendants knew that the contents were false, it is sufficient to allege that the defendants agreed to certify the fact as true, without knowing that it was so (t).
In a conviction under the stat. 39 & 40 G. 3. c. 106. against illegal agreements by journey men manufacturers, the court held it to be essential that the agreement should be stated; because it is necessary to shew a criminal ob ject, as well as a criminal intent (u).
(p) R. v. Tanner, 1 Esp. 304. (q) p. 97.
(7) Trem. P, C. 98.
(s) Trem. P. C. 99.
(t) R. Mowbray and others, 6 T. R. 619.
(u) R. v. Neild and others,
6 East, 417.
But, by the express provision of the statute 37 G. 3. c. 123. against the administration, &c. of unlawful oaths and engagements, it is unnecessary to set forth the words of such oath or engagement in the indictment; but it is sufficient to set out the purport, or some material part of it (x).
Of a nature similar to the offence of conspiracy is that of unlawful maintenance, which may be described by the general term manutenuit, without descending to the particular means employed.
In Tremayne's Pleas of the Crown, there is an indictment for maintenance, which in the marginal note is stated to have been drawn by Saunders, which avers generally, that the defendant for one whole year unlawfully maintained a certain plea pending in the Court of Exchequer, &c. (y); though in some precedents it is also averred, that the defendant, in and for the maintenance of the said suit, expended divers sums of money (z).
The offence of high treason consisting in the internal thought and secret purpose of the mind, cannot be known, tried, or judged of, unless it be disclosed and manifested by some open act, which must be set forth in the indictment (a). Where the treason consists in the compassing the king's death, or in adhering to his enemies, the parti'cular acts of compassing and adherence must be set forth, and where the treason consists in levying war against the king, it must be alleged according to the fact, that the defendants assembled with a multitude, armed and arrayed in a warlike manner, with the proper allegations of time and place (b). For levying of war being an overt act in
(x) R. v. Moses, 6 East, 419. (y) Trem. P. C. 177. R. V. Price. See also Sav. 41. Co.
(z) R v. Langrish, Trem. P. C. 176.
(a) Vaughan's case, 8 Co. 1. East. P. C. 116.
(b) 1 Hale, 150. East, P. C. 116. See the indictment against Damaree and Purchase, Post, 213. 8 St. Tr. 219. 267.
itself, no other overt act need be alleged (c). Bare words cannot constitute an overt act of treason, although they may be evidence to explain that which is an overt act (d). But writings may, if published, amount to an overt act of treason, if written in immediate furtherance of the treasonable design (e). In such cases it has been held, that it is not necessary to set forth the tenor of the treasonable writings, it is sufficient to allege their substance and purport (f), for they are the evidence only of the secret intention and compassing of the mind (g). And where other overt acts are alleged, it is not necessary that the whole detail of evidence should be set forth. It is sufficient that the charge be stated with reasonable certainty, so that the prisoner may be apprised of the nature of it (h).
(c) 1 Haw. c. 17. s. 29. Vaughan's case, 5 St. Tr. 21. Kel. 70. Benstrad's case, Cro. Car. 583.
(d) 4 Bl. Com. 80. 123. Fost, 200. 202. 204. 207. 346.
3 Inst. 14. 140. 6 East. P. C. 117. 1 Haw. c. 17. s. 33. 37.
39. 1 Salk. 631. Kel. 13. T. Ray. 408.
(e) R. v. Dr. Hensey, 1 Burr. 644. Roger's case, 6 St. Tr. 279. Gregg's case. 10 St. Tr. App. 77. Twyn's case, Kel. 22.
f) Coleman's case, 2 St. Tr.
661. Lord Preston's case, 2 St.. Tr. 411. Staley's case, 2 St. Tr. 655. Freeman's case, 6 St. Tr. 73. Roger's case, 6 St. Tr. 330. Watson's case, 2 Starkie's Rep. 116.
(g) See the precedents in Hensey's case, 1 Burr. 642. De la Motte's case, East, P. C. 124. Gregg's case, 10 St. Tr. App. 77. Lord Preston's case, 4 St. Tr. 411. Watson's case, 2 Starkie's Rep. 116.
(h) Fost. 194. 220. 1 Hale, 122. East, P. C. 121. Rockwood's case, &c. St. Tr. 696,