§ 265. Definition.-It has been said that there is, perhaps, no crime, an exact definition of which it is more difficult to give than the offense of conspiracy.1

It may, however, be defined as a combination between two or more persons to accomplish an illegal purpose, either by legal or illegal means, or a legal purpose by illegal means. The purpose or means may be illegal either at common law

1 State v. Donaldson, 32 N. J. L. 151, 90 Am. Dec. 649, Beale's Cases 828.

or by statute. Bouvier defines conspiracy as, "A combination of two or more persons by some concerted action to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means."2 Bishop states that "Conspiracy is the corrupt agreeing together of two or more persons to do, by concerted action, something unlawful either as a means or an end." Desty observes, "A criminal conspiracy is (1) a corrupt combination (2) of two or more persons, (3) by concerted action, to commit (4) a criminal or an unlawful act; (a) or an act not in itself criminal or unlawful, by criminal or unlawful means; (b) or an act which would tend to prejudice the public in general, to subvert justice, disturb the peace, injure public trade, affect public health, or violate public policy; (5) or any act, however innocent, by means neither criminal nor unlawful, where the tendency of the object sought would be to wrongfully coerce or oppress either the public or an individual."4 Chief Justice Shaw defines it as "a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful by criminal or unlawful means."5 And as stated by Justice Gilchrist, "The authorities agree in stating that a conspiracy is a confederacy to do an unlawful act, or a lawful act by unlawful means, whether to the prejudice of an individual or of the public, and that it is not necessary that its object should be the commission of a crime."

2 Bouvier's Law Dict.

32 Bish. New Crim. L. (8th ed.)

§ 171.

6 State v. Burnham, 15 N. H. 396, Knowlton's Cases 318. See also Ex parte Birdseye, 244 Fed.

44 Am. & Eng. Encyc. L. (1st 972; Brewster v. State (Ind.), 115 ed.), 583.

5 Commonwealth V. Hunt, 4 Metc. (Mass.) 111, 38 Am. Dec. 346, Beale's Cases 821.

N. E. 54; United States v. Rintelen, 233 Fed. 793; State v. Porter (Mo.), 199 S. W. 158

Judge Fitzgerald pertinently observes: "Conspiracy is aptly described as divisible under three heads-where the end to be attained is itself a crime; where the object is lawful but the means to be resorted to are unlawful; and where the object is to do injury to a third person or to a class, though if the wrong were effected by a single individual it would be a wrong, but not a crime."

The trend of recent decisions is to hold, in many instances, that a combination to do an act, which would be lawful if done by an individual is indictable.8

It is not necessary either that the purpose should be criminal or the unlawful means criminal.9

§ 266. Gist of the offense.—The gist of the crime of conspiracy is the unlawful combination. As a general rule, no attempt to carry out the agreement is essential. The agreement itself constitutes a sufficient overt act.10 In some states, however, by statute, a distinct overt act is essential in certain specified cases.11

7 Reg. v. Parnell, 14 Cox Cr. C. Ripley, 31 Maine 386; United States 508, Derby's Cases, 79.

8 State v. Huegin, 110 Wis. 189, 85 N. W. 1046, 62 L. R. A. 700; Franklin Union v. People, 220 Ill. 355, 77 N, E. 176, 4 L. R. A. (N. S.) 1001, 110 Am. St. 248.

9 State v. Hardin, 144 Iowa 264, 120 N. W. 470, 138 Am. St. 292; State v. Davis, 88 S. Car. 229, 70 S. E. 811, 34 L. R. A. (N. S.) 295; Ware v. United States, 154 Fed. 577, 84 C. C. A. 503, 12 L. R. A. (N. S.) 1053, 12 Ann. Cas. 233.

10 Ochs v. People, 124 Ill. 399, 423, 16 N. E. 662. See also Commonwealth v. Judd, 2 Mass. 329, 3 Am. Dec. 54; Garland v. State, 112 Md. 83, 75 Atl. 631, 21 Ann. Cas. 28n; People v. Richards, 1 Mich. 217, 51 Am. Dec. 75n, 80; State v.

v. Galleanni, 245 Fed. 977 (conspiracy to prevent persons subject to registration for selective draft under Act May 18, 1917, § 5, from registering); Taylor V. United States, 244 Fed. 321, 156 C. C. A. 607; United States v. Bryant, 245 Fed. 682 (conspiracy to resist raising of army by conscription held conspiracy to resist authority of the United States, though Selective Draft Act had not then been passed).

11 People v. Flack, 125 N. Y. 324, 26 N. E. 267, 11 L. R. A. 807n; Wood v. State, 47 N. J. L. 180; State v. Clary, 64 Maine 369; People v. Daniels, 105 Cal. 262, 38 Pac. 720; United States v. Barrett, 65 Fed. 62 (affirmed, 169 U. S. 218, 42 L. ed. 723, 18 Sup. Ct. 327).

§ 267. Contemplated crime one of which concert of conspirators is a constituent part.-When the contemplated crime is one of which concert of the conspirators is a constituent part, such as adultery, fornication, incest and bigamy, the courts hold that the mere agreement to commit it is not an indictable offense. The conspiracy in such a case is not treated as an integral offense, but rather as an integral part of another offense.12

But it has been held a woman may conspire to commit an offense against the United States, although the object of the conspiracy is her own transportation in interstate commerce for purposes of prostitution, in violation of the White Slave Act.13

§ 268. Third party implicated.-When a conspiracy to commit adultery, fornication and the like, implicates a third party, the conspiracy itself is indictable. It was said in one case, "The appellant contends there is no such crime as conspiracy to commit adultery. * This case is readily distinguishable from Shannon v. Commonwealth,1 and Miles v. State.15 In those decisions the agreement of a married woman to have intercourse with a man other than her husband was held not to amount to a conspiracy to commit adultery, for that the consent involved was a part of the offense itself. One may aid and abet in adultery without actually participating in the act. And we can discover no ground for saying that a combination to commit the unlawful act, not an agreement between the immediate parties to the intended crime may not constitute a conspiracy."1

*

12 Shannon V. Commonwealth, 14 Pa. St. 226; Miles v. State, 58 Ala. 390.

13 United States v. Holte, 236 U. S. 140, 59 L. ed. 504, 35 Sup. Ct. 271, L. R. A. 1915 D, 281n.

14 14 Pa. St. 226

15 15 Ala. 390.

16 State v. Clemenson, 123 Iowa 524, 99 N. W. 139. See also, State v. Henderson, 84 Iowa 161, 50 N. W. 758.

The same principle is involved where the conspiracy is maliciously to injure another in his business and it is essential that both conspirators combine to effect the purpose contemplated.

* * *

§ 269. When the unlawful agreement is of itself a crime.— The doctrine that where concert of action is essential to a crime a charge of criminal conspiracy does not lie, does not apply when the unlawful agreement is of itself a crime, but applies only when the agreement and the consummation thereof are so closely connected that the two constitute really but one offense, as in the case of fornication, adultery, bigamy and the like. "The doctrine is invoked that 'where concert of action is necessary to the offense, conspiracy does not lie.' That principle is familiar, but its application, as its language clearly indicates, is necessarily confined within very narrow limits. It does not reach a situation where mere combination to effect an object is itself criminal and not merged in a crime of higher degree, else the absurd result would follow that the offense of conspiracy would be impossible either at common law or under the statute. The rule applies where the immediate effect of the consummation of the act in view, which is the gist of the offense, reaches only the participants therein, and is in such close connection with a major wrong as to be inseparable from it, as for instance, in the offense of adultery, or bigamy, or incest, or dueling."17

§ 270. Wharton's view.-"When to the idea of an offense plurality of agents is logically necessary, conspiracy, which assumes the voluntary accession of a person to a crime of such a character that it is aggravated by a plurality of agents, can not be maintained. As crimes to which concert is neces

17 State v. Huegin, 110 Wis. 189, 243, 85 N. W. 1046, 62 L. R. A.