New* Trial, &c. On a motion for a new trial after conviction, all the defendants must be present, or the court will not entertain it, 11 East Rep. 307. The same rule also applies to a motion in arrest of judgment, 2 Burr. 929. 1 Bla. Rep. 209. But when the indictment is removed into the King's bench by certiorari, and set down for argument, it is not necessary that the defendant should appear in person, because it is in the nature of a special verdict, and his innocence may be presumed still, 2 Stra. 1227. ante 1 vol. 659.

New trial,

&c

[1143]

Punishment. The ancient punishment of conspiracy was The pun. that called villainous judgment, which was, that the offen-ishment. ders should lose the freedom on franchise of the law, so that [* 1144] they should be disqualified from becoming, in any case, a juryman or a witness-have their houses, lands and goods, seized by the crown-and, in the language of Lord Coke, "their houses and lands must be estrepped and wasted, their trees rooted up and rased, and their bodies sent to prison, all things retrograde and against order and nature, in destroying all things that have pleasured or nourished them," 3 Inst. 143. But there is no instance of the infliction of this punishment since the time of Edward III. 2 Burr. 996. 1027. At the present day, conspiracy is punishable, like any other misdemeanour, at the discretion of the court in which the offender is convicted, and the penalties are, in many cases, severe. Thus Kinnersley was sentenced to a year's imprisonment, a fine of 500l. and to find sureties for his good behaviour for seven years, 1 Stra. 196. And the parties who set on foot the imposture of the Cock-lane Ghost, to accuse an innocent person of murder, were sentenced, one to stand three times in the pillory, and be imprisoned two years, one to be imprisoned one year, and the other to be kept to hard labour for six months in the house of correction, according to their degrees of guilt, 1 Bla. Rep. 401. On conviction of conspiracy the defendant becomes incompetent to give evidence, 1 Leach, 442. but his competence may be restored by a pardon, 1 Hale, 306. 2 Hale, 278.

Crim. Laiv.

-VOL. III.

4 C

572

[* 1145]

indict

cy.

INDICTMENTS FOR CONSPIRACY.*

General The jurors for our lord the king upon their oath present, form of an that A. B. late of, &c. [here state the names and additions of ment for all the defendants,] being persons of evil minds and disposiconspira- tions, (b) on, &c. with force and arms, at, &c. [the venue,] (c) unlawfully and wickedly [or if the conspiracy be malicious, say "falsely and maliciously,"] did conspire, combine, confederate, and agree together, (d) to [here state the object of the conspiracy, as in the following precedents.] And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B. &c. in pursuance of and according to the said conspiracy, combination, confederacy and agreement, between them the said A. B. &c. as aforesaid had, did, on, &c. at, &c. [the place where the overt act took place,] [here set out the overt acts of conspiracy as in the following precedents,] to the great damage of, &c. [the party immediately injured,] to the evil example of all others, and against the peace of our said lord the king, his crown and dignity. [Add a second count, stopping at the statement of the conspiracy, omitting the overt acts, and concluding as above.]

For a con

That before and at the time of the committing of the offence spiracy to hereinafter next mentioned, to wit, on, &c. at, &c. W. B. M. release a late of, &c. was duly arrested by the sheriffs of London, by man from the custo. virtue of a certain writ of our said lord the king to them in dy of the this behalf directed, at the suit of R. M. the elder, and R. M. the in a certain plea of trespass on the case, in the younger, court of our said lord the king, before the king himself, under fic. wherein the said R. M. the elder and the said R. M. the titious

marshal

by becom. ing bail

names. (e) younger were plaintiffs, and W. P. B. and the said W. B. M. were defendants, and which said writ was duly indorsed and marked for bail in the sum of 1,794/. 1s. 6d. and the said W. B. M. being so arrested, and not being able to procure any sufficient bail to the said writ, was afterwards, to wit, on,

(b) This is mere inducement and not material.

(c) The venue must be laid where the conspiracy is entered into, not where it takes effect,

ante 1142.

(d) These are the most usual

words, but others of the same meaning are occasionally used in their stead.

(e) This was settled by an eminent crown lawyer, and the parties were convicted, A. D. 1816.

&c. aforesaid, at, &c. aforesaid, duly committed to the custody of the marshal of the Marshalsea of our lord the king, [* 1146] before the king himself, and at the time of the committing the offence hereinafter next mentioned, remained, and was a prisoner in the custody of the said marshal at the suit of the said R. M. the elder, and R. M. the younger, for want of sufficient bail, to wit, at, &c. aforesaid. And the jurors, &c. do further present, that the said W. B. M., J. S. late of, &c. F. S. late of, &c. J. B. late of, &c. and divers other persons to the jurors aforesaid as yet unknown, being evil disposed persons, and wickedly contriving and intending to impede the due course of law and justice, and to deprive the said R. M. the elder and R. M. the younger of the means of recovering their demand against the said W. B. M. and W. P. B. and to cause and procure the said W. B. M. to be released and go at large out of the said custody of the said marshal, wheresoever he would, without causing or procuring any sufficient person or persons to become bail for him the said W. B. M. in the said suit, according to the course and practice of the said court of our said lord the king, before, &c. afterwards, and whilst the said W. B. M. was in such custody as aforesaid, at the suit of the said R. M. the elder and R. M. the younger, to wit, on, &c. at, &c. aforesaid, unlawfully, maliciously, corruptly and wickedly, did conspire, combine, confederate and agree together, by means of false pretences, representations, and swearing, (e) to cause and procure the said W. B. M. to be released out of the said custody, and to go at large wheresoever he would, without having caused or procured any sufficient person or persons to become bail for him the said W. B. M. in the said suit, according to the course and practice of the said court, and without the leave and license and against the will of the said R. M. the elder and R. M. the younger. And the jurors, &c. do further present, that (f) afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, in pursuance of the said conspiracy, combination, confederacy, and agreement, the said J. S. and J. B. offered themselves as bail in the said court for the said W. B. M. in the said suit under false names, that is to say, the said J. B. under the pretended name of C. C. and the said J. S. under the pretended name of T. D. and the said J. B. then and there falsely, fraudulently, and deceitfully represented and pretended to the said court that the residence of him the said J. B. then was

(e) The means need not, in general, be stated, except where they alone render the design illegal, 2 Leach, 796.

(f) As to the statement of overt acts see 2 Ld. Raym. 1167, 1 Salk. 174,

in Wood-street, Cheapside, in the city of London, and that he there exercised and carried on the trade and business of a

[1147] goldsmith* and jeweller, and the said J. S. then and there did falsely, fraudulently, and deceitfully depose and make oath and affidavit in the said court that he did on Wednesday, the 24th day of November, serve Mr. J. the plaintiff's attorney, with a copy of the said notice of bail as aforesaid, and whereas in truth and in fact neither the said J. B. nor the said J. S. was or are worth the sum of £3588. And the jurors, &c. do further present, that the said W. B. M., J. S., F. S. and J. B. in further pursuance of the said conspiracy, combination, confederacy and agreement, by the means aforesaid, afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, and whilst the said suit was so depending in the said court of our said lord the king, before, &c. did cause and procure the said W. B. M. to be released out of the custody of the said marshal to go wheresoever he would without having caused or procured any sufficient person or persons to become bail for him the said W. B. M. in the said suit according to the course and practice of the said court, and without the leave or license of R. M. the elder or R. M. the younger, in contempt of the said court, to the great damage of the said R. M. the elder and R. M. the younger, to the great hinderance and obstruction of justice, to the evil example, &c. and against the peace, &c. And the jurors, &c. do further present, that the said W. B. M., J. S., F. S. and J. B. being such persons as aforesaid, afterwards, to wit, on, &c. aforesaid, with force and arms, at, &c. aforesaid, unlawfully, wickedly, and maliciously did again conspire, combine, confederate, and agree together unlawfully and wrongfully by false swearing and fraudulent and false pretences, and by imposition on the said court, to cause the said W. B. M. then being a prisoner in the custody, &c. at the suit of the said R. M. the elder, and R. M. the younger, in a certain other cause then depending in the said court, wherein the said R. M. the elder and R M. the younger, were plaintiffs, and the said W. B. M. was defendant, to escape and go at large out of prison without satisfying the said plaintiffs, and without any sufficient bail being put in by the said W. B. M. according to the course and practice of the said court, and the said W. B. M. in pursuance of such last mentioned conspiracy, afterwards, to wit, on the same day and year last aforesaid, at, &c. aforesaid, did, by falsely and fraudulently pretending in the said court that the name of the said J. B. was J. C. and that the name of the said J. S. was J. D. and by the said J. B. and J. S. respectively falsely swearing that they were worth respectively £3588 after payment of their debts, and by the said J. S. falsely

Second count.

and corruptly swearing that he had given notice of such bail being justified to W. J. the said plaintiff's attorney in the said last mentioned cause, and by then* and there justi-[* 1148] fying the said J. B. and J. S. as bail in the said last mentioned cause under such feigned names as aforesaid, did cause and procure the said W. B. M. to be liberated and go at large out of the custody, &c. without having put in any sufficient bail or in manner justified the said plaintiffs, to the great damage, &c. in contempt, &c. and against the peace, &c.

cause a

That one J. P. heretofore, to wit, on, &c. in Easter term, For con. in the thirty-seventh year, &c., sued and prosecuted out of spiracy to the court of our said lord the king of the Bench, at, &c. a sheriff's certain writ of our said lord the king, called a non omittas officer to capias ad respondendum, against one J. S. directed to the arrest a sheriff of, &c. by which said writ our said lord the king com-wrong per son, &c. by manded, &c. [here recite the writ,] which said writ afterwards, personaand before the delivery thereof to the said sheriff of, &c. toting the be executed, as hereinafter mentioned, was duly marked and party indorsed for bail for fifteen pounds and upwards, by virtue whom a against of an affidavit of the cause of action of the said J. P. in writ was that behalf before then made and duly filed of record in the issued. said court of our said lord the king of the Bench, according to the form of the statute in such case made and provided, and which said writ so indorsed afterwards and before the said return thereof, to wit, on, &c. was delivered to C. D. who then and from thenceforth, until and at and after the return of the said writ was sheriff of, &c. to be executed in due form of law, by virtue of which said writ and for having execution thereof he the said C. D. so being sheriff of, &c. as aforesaid, afterwards and before the return of the said writ, to wit, on, &c. duly made his certain warrant in writing under the seal of his office of sheriff of, &c. and bearing date the day and year last aforesaid, and directed to the keeper of the gaol of the said county, and also to J. P. and T. L. his bailiffs, and thereby then and there commanded them, &c. [recite the warrant,] which said warrant was then and there duly marked for bail for fifteen pounds and upwards, and which said warrant, so marked for bail, afterwards and before the return of the said writ, to wit, on, &c. last aforesaid, was delivered to the said J. P. then and afterwards being one of the bailiffs and officers of the said she riff, of, &c. to be executed in due form of law. And the jurors, &c. do further present, that J. F. late of, &c. [the names and additions of all the defendants,] contriving and wickedly and maliciously intending to injure, prejudice, and aggrieve the said J. P. so being such bailiff's officer of the said sheriff as aforesaid, and to subject him to an action at the suit