The opinion of the Court was delivered by
Moses, C. J.The appellant and Emanuel Fields were indicted for a conspiracy to cheat and defraud one William Smith. They had both plead “not guilty,” and appeared. The State severed. Jackson was put on his trial. Fields was the principal witness for the prosecution. After the jury retired a nol. pros, was entered as to him, and a verdict of “guilty” rendered against Jackson. Special grounds are submitted in arrest of judgment, and, principally among them, that the prosecution of one of the two parties against whom the conspiracy was charged having terminated before judgment against the other, it operates per se as an acquittal of the defendant on trial. This proposition cannot be maintained as a general one to the extent thus claimed for it. A nol. pros, does not necessarily end the prosecution nor bar the State from preferring another indictment on the same charge. — State vs. Haskell, 3 Hill, 75; State vs. Howard, 15 Rich., 274. Much less can it always operate as an acquittal. This conclusion, however, by no means settles the main points involved in the question made by the appellant. We must consider the bearing and effect of the verdict against him. The term “ conspiracy,” according to the books, implies a combination between two or more to do either an unlawful act or to accomplish by unlawful means a legal end. The concurring will of at least two persons is as necessary to the offense as that of three to the constitution of a riot. The essential prerequisite of a concert between two or more to establish the charge of a conspiracy has led to changes and modifications in the general rules which attained and prevailed at common law in relation to offenses which might be committed by a single person. In regard to the “conspiracy,” Mr. Bishop, in his second volume on Criminal Procedure, § 168, says: “There is no one of the recognized crimes which in matter of law as well as of pleading is more afloat than this.” In his first volume, § 960, he says: “The offense of conspiracy being committed only where more persons than one join in the act of wrong-doing, rests upon somewhat different ground in respect to the matter of separate trial than most other offenses. Here may indeed be separate trials for this offense, as, for instance, if only one appears to the indictment he may be tried alone, especially if he so requests. And where one of two conspirators who are jointly indicted dies before trial, the living one *288may be tried alone. But except where some reason of this sort prevails, no separate trial will be allowed in cases of conspiracy.” If all the defendants charged in an indictment for •conspiracy are acquitted but one, unless the offense is alleged to have been committed with others unknown, from the very nature of the execution the verdict against that one could not be permitted to stand. ' Where two are charged, and are both present in Court, after plea filed by each, a nol. pros, as to one before verdict rendered leaves the count in the indictment inoperative and without effect as to the other, because in that event no conspiracy is alleged against either; for, to constitute it, there must be the conjoined action of both. The indictment here, according to the usual form, charges that Jackson and Fields “unlawfully did combine, conspire, &c.” If the effect of the nol. pros, is to discontinue the charges as to Fields, there can be none against Jackson, for the essential ingredient is the combination. Could it be said in such a case the conspiracy is found as laid? In Rex vs. Kinnersly and Moore, (1 Stro., 193,) it was held that one might be convicted of conspiracy before the trial of the other. Here, however, it must be borne in mind that the other had not appeared and plead. The reason given, too, in support of the judgment by Eyre, C. J., would imply that the indictment alleged the conspiracy against the two named defendants cum multis aliis, for he referred in support of his view to Rex vs. Ludbury, where four were indicted for a riot, two found guilty and the other two accqitted; and on an examination of the case (12 Mod., 262,) it will be seen this was held a discharge of all, though Holt, C. J., said it would have been otherwise had it been laid cum multis aliis. On this distinction alone, too, did the ease of The King vs. Cook proceed. 7 Dow. and Ry., 673, and Rex vs. Kinnersly and Moore was cited as an authority for the conclusion of the Court. Besides, this point of difference is to be observed in the case last named and the one before us. There all the parties had not appeared and plead. Here both Fields and Jackson bad plead to the indictment and could have been tried together. In the former case a verdict might probably have been sustained against one, the allegation being against both, though one only was on trial;, but here, before the verdict was rendered, the charge, by the nol. pros., was dismissed as to Fields. The indictment, therefore, alleging a conspiracy by one alone, the effect of the nol. pros, destroys the averment of the “common design,” *289which, Mr. Russell says, is “the root of the charge.” In the case of the State vs. Calder, (2 McC., 404,) Mr. Justice Nott, delivering the opinion of the Court, said: “The law is too well settled to be questioned at this day, that less than three persons cannot commit a riot. If, therefore, any number of persons are indicted, and all but one or two are acquitted, judgment cannot be rendered against those who are convicted, unless the act be charged to have been committed with other persons unknown.”
As the motion to arrest the judgment must prevail, it is only necessary to notice very briefly so much of the grounds for a new trial as alleges error on the part of the Court in allowing the State to prove declarations made by its own witness entirely contradictory of his statement on the stand. While a party is allowed great latitude in examining an unwilling witness, though his own, he is not at liberty either to attack his credibility directly or to prove declarations inconsistent with his evidence in Court. Such a course would, in fact, give greater effect to what a witness might say when not under the obligation of an oath than is to be accorded to him when testifying with all the sanction and responsibility which it imposes.
The motion in arrest of judgment is granted.
Wright, A. J., concurred. Willard, A. J.I am of opinion that the granting of a nol. pros. after the jury were charged with the case ought to have the same effect as an acquittal in arresting judgment.