spiracy has in later times been invoked to suppress combinations among workmen to better their condition. Many of the most eminent judges in this country have looked upon it with disapproval, and expressed a determination to restrict rather than extend it. See 2 Stephen, Dig. Crim. L. 227, 229; State v. Keach, 40 Vt. 113; State v. Jones, 13 Iowa, 270; Com. v. Hunt, 4 Met. 111, 38 Am. Dec. 346; Com. v. Shedd, 7 Cush. 514.

§ 576. One Member of the Confederacy may be Convicted.— While it takes at least two to make a conspiracy, it is not necessary to make even two persons defendants. One alone may be convicted upon proof that there was a criminal conspiracy of which he was a member. This is elementary law. 2 Bishop, Crim. Proc. 186; 3 Whart. Am. Crim. L. (6th ed.) §§ 2340, 2344, 2346; State v. Adams, 1 Houst. Crim. Cas. 361; Com. v. Irwin, 8 Phila. 380. The doctrine of criminal conspiracy rests upon the obvious proposition that the power of many for mischief against the one is so great that the state should protect the one. State v. Rowley, 12 Conn. 112; Reg. v. Duffield, 5 Cox, C. C. 432.

577. Proof under Indictment Governed by same Rules as in other Cases.-An indictment for a conspiracy stands on precisely the same footing with an indictment for any other crime. There is no special virtue in the term "conspiracy," such as that it should establish a man's guilt by evidence of the acts of other men. Wright, Criminal Conspiracies, 69, 71; People v. Thoms, 3 Park. Crim. Rep. 256; People v. Courtney, 1 N. Y. Crim. Rep. 64; Cuyler v. McCartney, 40 N. Y. 221; Ormsby v. People, 53 N. Y. 472; Com. v. Work, 43 Phila. Leg. Int. 57; Johnson v. Miller, 63 Iowa, 529, 50 Am. Rep. 758; United States v. Jones, 3 Wash. C. C. 209; Swan v. Com. 104 Pa. 218.

§ 578. Declarations of Co-conspirators Competent.-Can declarations of one of the alleged co-conspirators, made subsequent to the abandonment or accomplishment of the conspiracy be given in evidence as against a co-conspirator?

The general rule upon this subject has been frequently considered by the New York court of appeals in some quite recent

cases.

a. New York Decisions in Reference to.-In McCarney v. People, 83 N. Y. 417, 38 Am. Rep. 456, in discussing this question, the court says: "It is a rule of stringency that there must be proof of a conspiracy before the declarations of a co-conspira

tor can be taken against one on trial for that offense. Yet that rule has sometimes been made to yield to the other that the order of proof must yield to the discretion of the court."

In the case of People v. Davis, 56 N. Y. 103, the court says: "The general rule is, that when sufficient proof of a conspiracy has been given to establish the fact prima facie in the opinion of the judge, the acts and declarations of each conspirator in the furtherance of the common object are competent evidence against all. But to make the declaration competent it must have been made in furtherance of the prosecution of the common object, or constitute a part of the res gesta of some act done for that purpose. A mere relation of something already done for the accomplishment of the object, of the conspirators is not competent evidence against the others. We have already seen that the state ment in question was a mere narration of what had been done."

In the case of Stone v. People, 13 Hun, 265, a deposition by one of the alleged co-conspirators, the deposition having been taken some two or three months after the transaction. The court said: "The deposition of Stone was incompetent as evidence against Black, The evidence was given long after the plaintiffs in error had ceased to act in furtherance of the purposes of the conspiracy. For the same reasons the deposition of Black was not evidence against Stone."

b. The Wisconsin Rule.-Wisconsin adopts substantially the same rule in that jurisdiction. The principle is well established that evidence of the acts and declarations of co-conspirators, if made pending the conspiracy, and in furtherance of, or with reference to, the common design, are admissible against all, and it is not necessary that the defendant against whom the act or declaration is sought to be introduced should have been a conspirator at the time the act or declaration took place. If he subsequently joined the conspiracy, he ratified the previous acts of the conspirators, and made such prior acts and declarations in reference to the common object evidence against him. Holtz v. State, 76 Wis. 99.

But it is indispensable that there be proof sufficient to establish prima facie the fact that a conspiracy existed at the time of the act or declaration sought to be introduced. Baker v. State, 80 Wis. 416.

c. Views of Mr. Roscoe.-In Roscoe's Criminal Evidence (5th

Am. ed.) page 414, the learned author, referring to the Queen's Case, 2 Brod. & B. 310, says: "The following rules were laid down by the judges: We are of opinion, that on the prosecution of a crime to be proved by conspiracy, general evidence of an existing conspiracy may, in the first instance, be received as a preliminary step to that more particular evidence, by which it is to be shown that the individual defendants were guilty participators in such conspiracy. This is often necessary to render the particular evidence intelligible, and to show the true meaning and character of the acts of the individual defendants, and on that account, we presume, it is permitted. But it is to be observed that, in such cases, the general nature of the whole evidence intended to be adduced is previously opened to the court, whereby the judge is enabled to form an opinion as to the probability of affecting the individual defendants by particular proof applicable to them, and connecting them with general evidence of the alleged conspiracy; and if upon such opening it should appear manifest that no particular proof sufficient to affect the defendants is intended to be adduced, it would become the duty of the judge to stop the case in limine, and not to allow the general evidence to be received, which, even if attended with no other bad effect, such as exciting an unreasonable prejudice, would certainly be a useless waste of time."

d. Other Sustaining Authorities.-But to have the declaration competent it must have been made in the furtherence of the prosecution of the common object, or constitute a part of the res gesta of some act done for that purpose. A mere relation of something already done for the accomplishment of the object of the conspirators is not competent evidence against the others. 1 Taylor, Ev. p. 542, § 530.

So, on the trial of one of several defendants jointly indicted for an offense, the declaration of a co-defendant, made in the absence of the defendant on trial, in furtherance of the common purpose, are admissible when a prima facie case of conspiracy has been made. To authorize the admission of such evidence, an express averment in the indictment, of the fact of a conspiracy, is not necessary. Goins v. State, 46 Ohio St. 457.

The rule laid down by Mr. East is as follows: "That the conspiracy or agreement among several to act in concert for a particular end must be established by proof and before any evidence

can be given of the acts of any person not in the presence of the prisoner; and this must, generally speaking, be done by evidence of the party's own acts, and cannot be collected from the acts of others, independent of his own, as by express evidence of the fact of a previous conspiracy together, or of a concurrent knowledge and approbation of each other's acts." But it is observed by Mr. Starkie that in some peculiar instances in which it would be difficult to establish the defendant's privity without first proving the existence of a conspiracy, a deviation has been made from the general rule, and evidence of the acts and conduct of others has been admitted to prove the existence of a conspiracy previous to the proof of the defendant's privity. In the case of Place v. Minster, 65 N. Y. 105, Mr. Commissioner Dwight, in speaking upon this subject, says: "Nothing can be better settled than the main proposition that the declarations of one alleged conspirator cannot be admitted against his associates unless the conspiracy be established. There is, however, no rule that the conspiracy must be established first in the order of time. Convenience may require that the declaration be admitted provisionally, subject to subsequent proof of the conspiracy. If that is not offered, it should be stricken out. If this discretion is abused, there will be error."

§ 579. Defendant's Guilt must be Established by Evidence of his own Acts.-It is necessary that the defendant's guilt, either as principal or accessory, should be finally established by evidence of his own acts. Wright, Criminal Conspiracies, 69, 71; People v. Thomas, 3 Park. Crim. Rep. 256; People v. Courtney, 28 Hun, 589; Cuyler v. McCartney, 40 N. Y. 221; Ormsby v. People, 53 N. Y. 472; Com. v. Work, 43 Phila. Legal Int. 57; Johnson v. Miller, 63 Iowa, 529; United States v. Jones, 3 Wash. C. C. 209; Swan v. Com. 104 Pa. 218; Stephen, Dig. Crim. L. art. 39; Reg. v. Berry, 4 Fost. & F. 389; State v. Cox, 29 Mo. 475; Clem v. State, 33 Ind. 418; Connaughty v. State, 1 Wis. 159, 60 Am. Dec. 370.

580. Rule as to Criminal Intent. To make an agreement between two or more parties a criminal conspiracy, it is not enough that the act is prohibited by statute, but the agreement must have been entered into with a criminal intent. People v. Powell, 63 N. Y. 88. But to constitute a criminal intent it is not necessary to show an intent to violate the law; the question is,

did the accused intend to do the thing he did do, and was that thing in violation of law. People v. Grim, 3 N. Y. Crim. Rep. 317; Halsted v. State, 41 N. J. L. 552, 32 Am. Rep. 247; Fox v. State, 3 Tex. App. 329, 30 Am. Rep. 144; Reg. v. Prince, 13 Moak, Eng. Rep. 385.

§ 581. When Proof of Conspiracy must First be Shown.The proof of conspiracy which will authorize the introduction of evidence as to the acts and declarations of the co-conspirators may be such proof only as is sufficient, in the opinion of the trial judge, to establish prima facie the fact of conspiracy between the parties, or proper to be laid before the jury as tending to establish such fact.

"Sometimes, for the sake of convenience, the acts or declarations of one are admitted in evidence before sufficient proof is given of the conspiracy; the prosecutor undertaking to furnish such proof in a subsequent stage of the cause." 1 Greenl. Ev. § 111.

The rules that the conspiracy must be first established prima facie before the acts and declarations of one conspirator can be received in evidence against another, cannot well be enforced "where the proof of the conspiracy depends upon a vast amount of circumstantial evidence, a vast number of isolated and independent facts; and, in any case, where such acts and declarations are introduced in evidence and the whole of the evidence introduced on the trial, taken together, shows that such a conspiracy actually existed,-it will be considered immaterial whether the conspiracy was established before or after the introduction of such acts and declarations." State v. Winner, 17 Kan. 298.

In many important cases evidence has been given of a general conspiracy, before any proof of the particular part which the accused parties have taken. Roscoe, Crim. Ev. (7th ed.) 415. "In some peculiar instances, in which it would be difficult to establish the defendant's privity without first proving the existence of a conspiracy, a deviation has been made from the general rule, and evidence of the acts and conduct of others has been admitted to prove the existence of a conspiracy previous to the proof of the defendant's privity." Roscoe, Crim. Ev. 414.

§ 582. What may be Shown in Aggravation of the Offense. -In State v. Mayberry, 48 Me. 218, it was held that if the conspirators carry out the object of conspiracy, that fact may be alleged in aggravation of the offense, and given in evidence to