The Court decided, that whether the act of the defendants was a trespass, fraud, or felony, was a question to be left to the jury; they were, in a criminal case, not only judges of the law, but also of the fact; that if the jury were of opinion the conduct of the defendants amounted to a fraud, it was sufficient to sustain the indictment, and that it was not necessary to prove it. It might be inferred from the circumstances of the case, as in murder, malice was an essential ingredient of the crime, yet the law often inferred malice, and it was unnecessary to prove it. So, also, in forgery, it is necessary to lay the act as done to defraud some person ; yet upon the commission of the crime, the law raises a presumption that it was done for the purpose of defrauding, and the court referred to Dodd’s case. So, also, in robbery, it was necessary to allege in the indictment, that it was done by putting in fear, yet it was unnecessary to prove it, for the law presumed it under certain circumstances. And in a conspiracy to defraud, after the unlawful taking is proved, the-iu*222tent to defraud is presumed, and it lays upon the defendants to repel that presumption.* The Court also adverted to the dangerous tendency the doctrine the defendants counsel had contended for would have ; the right of property would be no longer secu're ; the creditor might seize ^-g <jetjtorJs property when and where he choose, and would only be answerable in an action of trespass or case, as the circumstances might be.
The Jury-retired for a short time, and returned" with a verdict of guilty, against the defendants.
Note.—For the doctrine relating to conspiracy, see the case of Trequier and others, (ante, page 109,)and the authorities there referred to.
The American decisions upon this point are herein enumerated.
A. and B. were indicted fora conspiracy to defraud C.; B. was acquitted, and the jury being unable to agree on a verdict whether A. was guilty or not, the Court, against the consent of A. ordered a juror to be withdrawn, and the jury discharged. It was held that the Court may, in their discretion, in a criminal case, discharge a jury when they cannot agree on a verdict, against the consent of the prisoner, who may be brought to trial again in a capital offence. Johns. Cas. p. 301.
Three prisoners were indicted for a conspiracy, and before the trial one died ; another was acquitted; held that the third might be tried and convicted. Ibid.
A. and B. being indicted for a conspiracy to defraud C. the jury found a . verdict that there was an agreement between A: and B. to obtain money from C. but with an intent to return it again. This was held not to be a verdict of acquittal, or a verdict on which any judgment could be given. Ibid.
It seems that in an action on the casein the nature of conspiracy,- it is not necessary to declare" that the conspiracy was without probable cause. But, on .error, the Court will presume, when the verdict is for the plaintiff, that probable cause was shown. 1 Binney, 172.
*223A combination! s a conspiracy in law, whenever the act to be done has a necessary tendency to prejudice the public, or oppress individuals, by unjustly subjecting them to the power of the confederates, and giving effect to the purposes of the latter, whether of extortion or misc chlef"
Every association is criminal whose object is to raise or depress the price of labor beyond what it would bring if it were left without artificial incitement. Journal of Jurisprudence, p. 225.
Proof of an overt act by one, in pursuance of a conspiracy by several, is sufficient to convict all. It is not necessary in an indictment for a conspiracy to defraud by means of false pretences, &c., to charge the actual defrauding of any one, if the act is laid to be done for the purpose of defrauding. Serg. & R. p. 220. An indictment charging a conspiracy to defraud by means of false pretences, and false, illegal, and unauthorized writing, in the form and similitude of bank notes which were of no value, and purported to have been promissory notes, and to have been signed &c., and stating the overt act to consist in passing a note, purporting to be a note, a bank note, and to have been signed, &e., is good. Ibid.
On an indictment for a conspiracy in enveigling a young girl from her mother’s house, and reciting the marriage ceremony between her and one of the defendants, a subsequent carrying her off, with force and threats, after she had been relieved on a habeas corpus, was allowed tobe given in evidence. 2 Yates, p. 114.
Words used by one man, are not evidence against another, unless they are proved to be engaged in a common enterprise; in such case they are evidence, though not conclusive. 3 Serg*. and R. 9.
The gist of a conspiracy is the unlawful confederacy to do an unlawful act, or even a lawful act for an unlawful purpose. The offence is complete when the confederacy is made ; and any act done in pursuance of it, is no constituent part of the offence, but merely an ag *224gravation of it. 2 Mass. Rep. p. 329—536: vol. 6, p. 74: vol. 9, page 4^5 ■
conspiracy with intent to defraud whoever can be defrauded, without having any particular persons in view, is an indictable offence. Ibid.
A conspiracy to charge any person with a crime, and, in pursuance of the conspiracy, falsely to affirm that he is guilty, without procuring or intending to procure any indictment, or any process, civil or criminal, against such person, is an indictable offence. 2 Mass. Rep. 536.
A conspiracy to commit a felony or misdemeanor, if the felony or misdemeanor be in fact committed in pursuance of the conspiracy, cannot be punished as a distinct offence. 5 Mass. Rep, 106.
Where, on an indictment for a conspiracy to cheat a person out of his property, the guilt of one of the conspirators, as to the fraudulent design, wad clearly proved, evidence that the other conspirator was present at the time the fraudulent design was carried into execution, and that he received a part of the property, and sold it under a fictitious name, was considered" sufficient for the jury to infer from it, that he was an associate and confederate in the fraud by which it was obtained. Ibid. City Hall Rec. vol. 3, p. 60.
A conspiracy implies illegality, and though usual, it is unnecessary to allege, in an indictment for that offence, that the conspirators unlawfully conspired. City Hall Rec. vol. 5, p. 112.
For several persons to agree, and bind themselves together by bond or covenant, to do or not to do that which if done, or not done, would injure an individual or individuals, in person, property, or reputa tion, is a conspiracy. Ibid. vol. 6, p. 33.
In conspiracy, accumulative testimony may be introduced. Ibid. p. 43.