PART X. ATTEMPTS-CONSPIRACIES-ACCESSORIES. commit 570. Every one is guilty of an indictable offence and liable Attempt to to seven years' imprisonment who attempts, in any case not certain hereinbefore provided for, to commit any indictable offence for indictable which the punishment is imprisonment for life, or for fourteen offences. years, or for any term longer than fourteen years. 55-56 V., c. 29, s. 528. commit 571. Every one who attempts to commit any indictable Attempt to offence for committing which the longest term to which the other offender can be sentenced is less than fourteen years, and no indictable express provision is made by law for the punishment of such offences. attempt, is guilty of an indictable offence and liable to imprisonment for a term equal to one-half of the longest term to which a person committing the indictable offence attempted to be committed may be sentenced. 55-56 V., c. 29, s. 529. Attempts.]—An indictment, charging that the accused unlawfully attempted to steal from the person of an unknown person the property of such unknown person, without giving the name of the person against whom the offence was committed, or the description of the property the accused attempted to steal, is sufficient. And where a prisoner is indicted for an attempt to steal, and the proof establishes that the offence of larceny was actually committed, the jury may convict of the attempt, unless the court discharges the jury and directs that the prisoner be, indicted for the complete offence (Code sec. 712). R. v. Taylor (1895), 5 Can. Cr. Cas. 89 (Que.). Where on an indictment for a principal offence and for an attempt to commit such an offence, the evidence is wholly directed to the proof of the principal offence, the jury's verdict of guilty of the attempt only. will not be set aside although there were no other witnesses in respect of the attempt than those whose testimony, if wholly believed, shewed the commission of the greater offence. R. v. Hamilton (1897), 4 Can. Cr. Cas. 251 (Ont.) It is within the province of the jury, to believe, if it sees fit to do so. a part only of a witness's testimony and to disbelieve the remainder of the same witness's testimony, and it may therefore credit the testimony in respect of a greater offence only in so far as it shews a lesser offence. Ibid. The mere intention to commit an offence is not criminal. Some act is required, and all acts towards committing an offence are not indictable. Acts remotely leading towards the commission of the offence are not to be Attempt to commit statutory offences. Conspiring to commit indictable offence. considered as attempts to commit, but acts immediately connected with The common law jurisdiction as to crime is still operative, notwithstanding the Code, and even in cases provided for by the Code, unless there is such repugnancy as to give prevalence to the later law. Ibid. 572. Every one is guilty of an indictable offence and liable to one year's imprisonment who attempts to commit any offence under any statute for the time being in force and not inconsistent with this Act, or incites or attempts to incite any person to commit any such offence, and for the punishment of which no express provision is made by such statute. 55-56 V., c. 29, s. 530. 573. Every one is guilty of an indictable offence and liable to seven years' imprisonment who, in any case not herein before provided for, conspires with any person to commit any indictable offence. 55-56 V., c. 29, s. 527. What is conspiracy.]-An agreement between two or more persons for any of the purposes following will constitute criminal conspiracy: 1. Falsely to charge another with a crime punishable by law, either from a malicious or vindictive motive or feeling toward the party, or for the purpose of extorting money from him. 2. Wrongfully to injure or prejudice a third person or any body of men, in any other manner. 3. To commit any offence punishable by law. 4. To do any act with intent to pervert the course of justice. Archbold's Crim. Plead. (1893), 21st ed., 1100. The existence of a bad motive in the case of an act which is not in itself illegal will not convert that act into a civil wrong for which reparation is due. A wrongful act done knowingly and with a view to its injurious consequences may in the sense of law be malicious; but such malice derives its essential character from the circumstance that the act done constitutes a violation of the law. Allen v. Flood (1898), A. C. 1 per Lord Watson at p. 92. In order to constitute legal malice the act done must, apart from bad motive, amount to a violation of law. Ibid. The common law jurisdiction as to crime is still operative notwithstanding the Criminal Code, but subject to the latter prevailing where there is a repugnancy between the common law and the Code. R. v. Cole (1902), 5 Can. Cr. Cas. 330. And see Code secs. 10-12 as to the introduction of the Criminal Law of England in the provinces of Ontario, British Columbia and Manitoba. Employer and employee.]—In Quinn v. Leathem, [1901] A.C. 495, the plaintiff was a butcher, and employed non-union men whom he refused to discharge on the demand of a trades union, whereupon the defendants conspired together to injure the plaintiff's business by inducing his customers and servants to break their trade contract with him, or not to deal with him or continue in his employment, resulting in damage to the plaintiff. The House of Lords held, affirming the judgment of the Irish Court of Appeal (1899), 2 I.R. 667, that this to be an actionable wrong. While lawful act gives no right of action to a person injured thereby merely because it is prompted by a malicious motive, a conspiracy to injure a third person in his person or property is not a lawful act. Quinn v. Leathem, [1901] A.C. 495. A refusal to work with an individual under the ban of the union, and thereby in effect to prevent him from obtaining employment, is not an actionable wrong if done in good faith for the purpose of protecting or advancing the interests of the union, but is an actionable wrong if done to injure or punish the individual in question. Giblan v. National Amalgamated Labourers' Union, 18 T.L.R. 500; Mogul S. S. Co. v. McGregor, [1892] A.C. 38; Allen v. Flood, [1898] A.C. 108; Quinn v. Leathem. [1901] A.C. 495. By Code sec. 590 it is provided that "no prosecution shall be maintainable against any person for conspiracy in refusing to work with or for any employer or workman, or for doing any act or causing any act to be done for the purpose of a trade combination, unless such act is an offence punishable by statute." It being provided that a member of a trades union had conspired to injure a non-union workman by depriving him of his employment, this was held not to be excepted as an "act for the purpose of trade combination," and a conviction for a conspiracy was sustained. R. v. Gibson (1889), 16 O.R. 704. As to intimidation of workman in trade disputes to prevent their working at their trades see Code secs. 501-503. Intention and agreement.]—A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. But where two agree to carry it into effect. the very plot is an act in itself and is the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means. Mulcahy v. R., L.R. 3 H.L., Eng. and Ir. App. 306, 317; Archbold's Crim. Evid., 21st ed., 1104. The conspiracy itself is the offence, and whether anything has been done in pursuance of it or not is immaterial. R. v. Gill (1818), 2 B. & Ald. 204; R. v. Seward (1834), 1 A. & E. 706; R. v. Richardson (1834), 1 M. & Rob. 402; R. v. Kenrick (1843), 5 Q.B. 49. Indictment.]-Where three persons were indicted for conspiracy, and one of them pleaded guilty and the other two were tried and acquitted, the court of Crown cases reserved unanimously held that the defendant who had pleaded guilty should have been allowed to withdraw his plea of guilty, and a conviction on such plea was therefore set aside. R. v. Plummer, [1902] 2 K.B. 339. An indictment for unlawfully conspiring and agreeing together and with each other to deprive another of the necessaries of life, to wit proper medical care and nursing, whereby his death was caused, but not alleging any duty to supply such care and nursing is bad as not disclosing an offence known to the law, because of such omission, R. v. Goodfellow ·(1906), 10 Can. Cr. Cas. 424, 11 O.L.R. 359. In a case of conspiracy to do that which is not a crime or to do a wrong which is not well known as being the subject of a criminal conspiracy, the facts should be set out in the indictment that it may appear whether or not the conspiracy charged is an indictable offence. Ibid. An indictment for conspiracy to cure another of a sickness endangering life, "by unlawful and improper means" and thereby causing his death is bad and should be quashed because it does not specify the unlawful and improper means nor indicate the specific crime or wrong intended to be relied upon. Ibid. An indictment for a conspiracy may be tried in any county in which an overt act has been committed in pursuance of the original illegal combination and design. R. v. Connolly (1894), 25 Ont. R. 151, 169. The date mentioned in the indictment as the day when the conspiracy took place is not material, but in form some day before the indictment preferred, must be laid; evidence is not thereby precluded in respect of an earlier date. R. v. Charnock (1698), 12 Howard's State Trials, 1397. Evidence.]—It is not necessary to prove that the defendants actually met together and concerted the proceeding; it is sufficient if the jury are satisfied from the defendants' conduct either together or severally, that they were acting in concert. R. v. Fellowes (1859), 19 U.C.R. 48, 58; Farquhar v. Robertson 13 P.R. (Ont.) 156. It must be left to the jury to estimate the weight of the evidence of an accomplice according to their opinion of the motives, character and credibility of the witness, and of the probable nature of his statement. And if it has had the effect of convincing them without doubt of the guilt of the accused they are at liberty to act upon their conviction. Per Robinson, C.J. R. v. Fellowes (1859), 19 U.C.Q.B. 48. If A. and B. conspire together, each is guilty of an offence, and each may be indicted separately, tried alone and convicted, although both be living and within the country and county at the time of the indictment, trial and conviction. R. v. Frawley (1894), 1 Can. Cr. Cas. 253 (Ont.). In a charge of conspiracy when the existence of the common design on the part of the defendants has been proved, evidence is then properly receivable as against both of what was said or done by either in furtherance of the common design. R. v. Connolly (1894), 1 Can. Cr. Cas. 468 (Ont.). And evidence is admissible of what was said or done in furtherance of the common design by a conspirator not charged, as against those who are charged, after proof of the existence of the common design on the part of the defendants with such conspirator. Ibid. The charge of Coleridge, J., in R. v. Murphy (1837), 8 C. &. P., at p. 310, conveniently summarizes the usual method of proving a charge of conspiracy: "Although the common design is the root of the charge, it is not necessary to prove that the parties came together and actually agreed in terms to have this common design, and to pursue it by common means, and so carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing, and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, and the other another part of the same act so as to complete it with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, ‘Had they this common design, and did they pursue it by these common means—the design being unlawful?'" R. v. Connolly (1894), 1 Can. Cr. Cas. 468 (Ont.); R. v. Fellowes, 19 U.C.Q.B. 48. At the hearing of a charge of conspiracy in relation to corrupt practices at an election, before a county judge sitting as police magistrate, evidence given before a special committee of the House of Commons, and taken down by stenographers, was tendered before the magistrate, and refused by him; it was held that the court had no jurisdiction to grant a mandamus to the magistrate directing him to receive such evidence. R. v. Connolly (1891), 22 Ont. R. 220. In Rex v. Brailsford, 21 Times L.R. 727, the two defendants were held to be guilty of conspiracy in having obtained from the Foreign Office a passport for one of them with intent that it should be used by a third person, such an act having a tendency to produce a public mischief. Upon a charge of conspiracy to defraud the Canadian Pacific Railway Co. by bribing clerks in the company's employ to illegally and fraudulently disclose information of the secret audits to be made on trains and to furnish such information to conductors to enable them to be prepared for the audits when made, and to be free at other times to retain fares and to allow passengers to ride free or for a reduced fare, the court properly rejected evidence of conductors to the effect that if they knew the date of a proposed secret audit they would communicate it to the conductor whose train was to be audited, for a purpose other than that of defrauding the company. R. v. Carlin (No. 1) 6 Can. Cr. Cas. 365; R. v. Carlin (No. 2) 6 Can. Cr. Cas. 507. It is conspiracy to defraud a railway company for an employee of the audit office of the railway to agree with train conductors to sell to them secret information as to the time of special audits of passenger tickets on their trains, which information it was the duty of the accused as such employee to keep secret. The system of special audits on trains being designed to prevent the railway company being defrauded by irregularities not only on the train audited but on others, and being dependent for its effectiveness on the secrecy as to the time when it will take place, the disclosure of same for reward is evidence of an attempt to cause the company a financial loss, although such disclosure tended to prevent any loss on the occasion when such audits took place. The King v. Johnston, 6 Can. Cr. Cas. 232. The prosecutor may go into general evidence of the matter of the conspiracy, before he gives evidence to connect the defendant with it. Rex v. Hammond, Esp. 718. The act and declarations of any of the co-conspirators, in furtherance of the common design, may be given in evidence against all. Archbold 1105, Regina v. Shellard, 9 C. & P. 277, and The Queen v. Blake, 6 Q. B. 126. And if 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 in other counties: King v. Bowes, referred to in 4 East at p. 171. Before evidence is given of the acts of one conspirator against another, proof must be given of 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. Archbold Cr. Evid. 1106, approved in R. v. Connolly, 1 Can. Cr. Cas. at page 491. The offence of conspiracy to defraud under Code sec. 444 does not include a conspiracy to defeat a candidate's chances of election by the employment of unlawful devices. R. v. Sinclair (1906), 12 Can. Cr. Cas. |