2106. and see 1 East, P. C. 461, 462. 8 Mod. 320: for these, severally, it has been holden, an indictment will lie. But an indictment will not lie for a conspiracy to kill game, or to commit any other mere civil trespass, R. v. Turner, 13 East, 228, or for a conspiracy to sell a man an unsound horse, R. v. Pywell & al., 1 Stark. 402, or for a conspiracy to deprive a man of an office under an illegal trading company. R. v. Stratton, 1 Camp. 549 n.

Under the third head,-a conspiracy to commit a felony or misdemeanor, is indictable. See R. v. Pollman & al., 2 Camp.

229.

Under the fourth head-a conspiracy by certain justices of peace to certify that a highway was in repair, when they knew it to be otherwise, was holden to be indictable. R. v. Mawbey & al., 6 T. R. 619. So, where several persons conspired to procure others to rob one of them, in order, by convicting the robber, to obtain the reward then given by statute in such a case, and the party who accordingly committed the robbery, was afterwards convicted and actually executed: these persons were indicted for the conspiracy, and convicted. R. v. Macdaniel & al., 1 Leach, 45.

As to the fifth head, namely, effecting a legal purpose with a corrupt intent, or by improper means, see 1 Leach, 37. 3 Bur. 1439. 1 Wils. 41. 8 Mod. 321. And as to the sixth head, see post p. 394.

1. The indictment must in the first place charge the conspiracy. And in stating the object of the conspiracy, the same certainty is not required, as in an indictment for the offence &c. conspired to be committed; as, for instance, an indictment for conspiring to defraud a person "of divers goods," has been holden sufficient. Ante, p. 18; and see 3 Bur. 1320.

2. It is usual to set out the overt acts, that is to say, those acts which may have been done by any one or more of the conspirators, in order to effect the common purpose of the conspiracy. But this is not essentially necessary: the conspiracy itself is the offence; and whether any thing have been done in pursuance of it, or not, is immaterial. R. v. Gill & al., 2 Barn. & Ald. 204. and see 2 L. Raym. 1167. 2 Bur. 993. 3 Bur. 1321.

3. In an indictment for a conspiracy to indict or charge a man with an offence, it is not necessary to aver that the man is innocent of the offence; R. v. Kinnersley & al., 1 Str. 193; for he shall be presumed to be innocent, until the contrary appear. See R. v. Best, 1 Salk. 174. R. v. Spragg, 2 Bur. 993. So, in an indictment for conspiring to pervert the course of justice, by producing a false certificate of justices of peace that a road, indicted, was in repair, in order to influence the judgment of the court: it is not necessary to allege that the defendants knew the certificate to be false; it is sufficient that

they agreed to certify the fact as true, without knowing it to be so. R. v. Mawbey, 6 T. R. 619.

4. The venue may be laid in the county in which the conspiracy actually took place, or in a county in which any one of the defendants did an act in furtherance of the common object of the conspirators. Ante, p. 5.

It may be necessary to observe, that it has been holden that the Quarter Sessions have jurisdiction of conspiracy. R. v. Rispal, 3 Bur. 1320, 1 W. Bl. 368.

Evidence.

Prove the conspiracy, as described in the indictment, and that the defendants were engaged in it; or prove circumstances from which the jury may presume it. See R. v. Pursons & al., 1 W. Bl. 392. And the prosecutor may go into general evidence of the nature of the conspiracy, before he gives evidence to connect the defendant with it. R. v. Hammond & al., 2 Esp. 718.

The acts also of any one of the conspirators, in furtherance of the common design, may be given in evidence against all. Ante, p. 268. And if any one overt act be proved in the county where the venue is laid, other overt acts either of the same or others of the conspirators, may be given in evidence, although committed in other counties. Ante, p. 268. R. v. Bowes, 4 East, 171 n. But before you give in evidence the acts of one conspirator against another, you must prove the existence of the conspiracy, that the parties were members of the same conspiracy, and that the act in question was done in furtherance of the common design. Ante, p. 268.

The wife of one of the conspirators shall not be allowed to give evidence for or against the others. See ante, p 97.

As conspiracy must be by two persons at least, one cannot be convicted of it, unless he have been indicted for conspiring with persons to the jurors unknown. 1 Hawk. c. 72. s. 8. But one person alone may be tried for a conspiracy, provided the indictment charge him with conspiring with others, who have not appeared, R. v. Kinnersley & al., 1 Str. 193, or who are since dead. R. v. Nichols & al., 2 Str. 1227.

Indictment for a conspiracy to commit a crime.

Middlesex, to wit: The jurors for our lord the King upon their oath present, that J. S., late of the parish of B. in the county of M., shipowner, J.W. late of the same place, yeoman, and E. W. late of the same place, mariner, being evil disposed persons, and wickedly devising and intending to defraud and prejudice certain persons hereinafter mentioned, on the third day of May, in the third year of the reign of our sovereign

lord George the fourth, with force and arms, at the parish aforesaid in the county aforesaid, did amongst themselves conspire, combine, confederate, and agree together, falsely and fraudulently to cheat and defraud certain underwriters hereinafter mentioned, of divers large sums of money: AND THE JURORS AFORESAID upon their oath aforesaid do further present, that the said J. S., J. W., and E. W., afterwards, to wit, on the [date of the policy] in the year aforesaid, at the parish aforesaid in the county aforesaid, in pursuance of and according to the said conspiracy, combination, confederacy, and agreement amongst themselves had as aforesaid, did cause and procure a certain ship called the and certain goods in and on board of the said ship, to be insured by certain underwriters, to wit, by A. B., C. D., E. F., and G. H., and the said underwriters then and there severally underwrote a certain policy of insurance upon the said ship, and upon the said goods so loaden on board the said ship as aforesaid, upon and for a voyage from the port of London to the island of Saint Vincent in the West Indies. AND THE JURORS AFORESAID upon their oath aforesaid do further present, that the said J. S., J. W., and E. W. afterwards, and after the said ship sailed from the port of London aforesaid upon the voyage aforesaid, to wit, on the fourth day of June, in the year aforesaid, in further pursuance of and according to the said conspiracy, combination, confederacy, and agreement amongst themselves, had as aforesaid, did remove and unlade from on board the said ship, divers goods insured as aforesaid, of great value, to wit, of the value of four hundred pounds, before the said ship had reached her port or place of destination aforesaid, to wit, at the parish aforesaid in the county aforesaid. AND THE JURORS AFORESAID upon their oath aforesaid do further present, that in further pursuance of and according to the said conspiracy, combination, confederacy, and agreement amongst themselves had as aforesaid, the said J. S., J. W., and E. W. afterwards, to wit, on the twentieth day of June in the year aforesaid, on the high seas, to wit, at the parish aforesaid in the county aforesaid, did cut, bore, and make, and did cause and procure to be cut, bored, and made, divers holes in the bottom and sides of the said ship or vessel, with intent thereby to sink, cast away, and destroy the said ship and the goods in and upon the said ship so laden as aforesaid, and with intent and design then and thereby wilfully and maliciously to prejudice the said several persons who had so underwritten the said policy of insurance upon the said ship, and upon the goods so therein and thereupon loaden as aforesaid: to the great damage of the said A. B., C. D., E. F., and G. H., who had so underwritten the said policy as aforesaid, and against the peace of our lord the King, his crown and dignity. See ante, p. 187, and the precedent, 6 Went. 387 and see the following precedents: of an indict

ment for a conspiracy to embezzle money collected on a brief, C. C. C. 136;-to cheat a man out of money, by pretending to secure to him an annuity, 4 Went. 80. 89 ;-to get from a man his acceptances, upon pretence of getting them discounted, 6 Went. 378 ;to defraud a man of money, under pretence of procuring a place, C. C. C. 127. 133;-to blow up the walls of a prison, C. C. C. 422;-to escape out of prison, 4 Went. 116;-to raise the price of victuals (salt), C. C. C. 130;-to obtain a nolle prosequi to an indictment, by fraud, C. C. C. 138 ;—to give a false certificate of a road being in repair, 4 Went. 125, and see R. v.Mawbey, 6 T. R. 619;-to throw a burthen upon a parish, by the parish officers of another parish persuading a pauper of the former parish to marry a female pauper of their parish, C. C. C. 128;—to bring a pregnant pauper to settle in a parish, 4 Went. 124 ;-wrongfully to hold a man to bail, 4 Went. 94;—to withdraw customers from a brewer, 4 Went. 106;-to injure gunmakers in their trade, 4 Went. 439 ;-to ruin a player in his profession, 6 Went. 443 ;—to accuse a woman of incontinence with defendant, in order to make her marry him, 4 Went. 79.

Evidence.

As to the evidence, see ante, p. 392. Prove the conspiracy either expressly; or prove one or more of the overt acts laid, and that the defendants were either engaged in the commission of them, or caused or procured their commission, from which the jury may fairly presume the conspiracy.

As to combinations by workmen, to enhance their wages, &c. &c., see stat. 39 & 40 G. 3. c. 106, which inflicts a punishment for the offence, upon a summary conviction before two magistrates; and see Burn, J., tit. Servant, s. 27. See also forms of indictments at common law, C. C. C. 127, 134. 4 Went. 100. 103. 113. 120. 6 Went, 375.

BOOK II.

PART IV.

Accessaries, &c.

Indictment of a principal in the second degree.

After stating the offence of the principal in the first degree, and immediately before the conclusion of the indictment, charge the principal in the second degree thus:] And the jurors aforesaid upon their oath aforesaid do further present, that J. W. late of the parish aforesaid in the county aforesaid, labourer, on the day and year aforesaid, with force and arms, at the parish aforesaid in the county aforesaid, feloniously was present, aiding, abetting, and assisting the said J. S., the [felony and larceny] aforesaid to do and commit: [against the peace &c. In an indictment for murder, this is inserted immediately before the concluding clause, and so the jurors, &c.; and this clause then charges both the principals in the first and second degree with the murder, thus: And so the jurors aforesaid upon their oath aforesaid do say, that the said J. S. and J. W., the said J. N., in manner and form aforesaid, feloniously, wilfully, and of their malice aforethought, did kill and murder: against the peace, &c. See ante, p. 210, 211.

Felony, with or without clergy, according to circumstances. Where a statute creates a felony, and excludes persons guilty thereof from the benefit of clergy, without making provision as to persons present aiding and abetting: principals in the second degree are thereby ousted of clergy, as well as principals in the first degree. R. v. Midwinter & al., Fost. App. 415. Coalheavers'