Where an indictment for a conspiracy to procure false witnesses Variance. on the trial of an ejectment, at the great sessions for the county of Glamorgan, stated that at the general sessions of our Lord the King, holden, &c., an action of ejectment was depending, in which action J. Doe, on the demise of W. Rees and D. Terry, was the plaintiff, and R. Thomas and T. Beavan the defendants, and it appeared that the ejectment was brought on a joint and two several demises of Rees and Terry; it was held, first, that the description of the sessions was erroneous, as it should have been at the great sessions; secondly, that there was a variance between the action described in the indictment and the action proved to have been pending. (d) Where an indictment for a conspiracy stated in the inducement Misdescription that the defendants knew that the parties conspired against were of a statute the proprietors of certain licensed stage carriages, and as such pro- in prietors liable to certain penalties, in which the drivers of such carriages should be convicted of any offence committed by the said drivers, against "a certain act of Parliament made and passed in the second and third years of the reign of his present Majesty, intituled, &c.," (setting out the title correctly); and that the defendants unlawfully conspired falsely to exhibit a certain information charging, &c., contrary to the form of the statute in such case made and provided; the judgment was arrested, on the ground that a statute cannot be pleaded as made in two years; for in law an act cannot be made in two years. (e) Where the counts in an indictment for a conspiracy are framed in a general form, the Judge will order the prosecutor to furnish the defendants with a particular of the charges, upon which he means to rely, and such particular ought to be so framed as to give the defendants the same information as would be given by a special count: but it need not state the specific acts the defendants are charged with having done, or the times or places at which such acts are alleged to have taken place. (ƒ) indictment for conspiracy. an ind Particulars of the charges intended to be relied npon. defendants. Upon the trial of an indictment for a conspiracy, the counsel for Acquittal of the prosecution has a right, before opening his case, to have any some of the of the defendants acquitted, in order that he may call them as witnesses, and the counsel for the other defendants has no power of objecting to this being done. (g) Where an indictment contained counts for a conspiracy and Election. counts for a libel contained in a hand-bill, and there was no evidence to affect one of the two defendants as to the libel; Coleridge, J., at the close of the case for the prosecution, put the prosecutor to elect upon which charge he would go, before the defendants' counsel entered upon the defence. (h) (d) Rex v. Thomas, 1 C. & P. 472, Park, J. A. J. The (e) Rex v. Biers, 1 A. & E. 327. correct statement is" a certain statute made and passed in a Session of Parliament, held in the first and second years of the reign of King William the Third." Per Patteson, J.. ibid. Gibbs v. Pike, 8 M. & W. 223. S. P. (f) Rex v. Hamilton, 7 C. & P. 448. Littledale, J., after consulting several of the other Judges. In Anonymous, 1 Chitty, 698, the Court of King's Bench refused to order such particulars to be given on motion, but intimated that the correct course was to apply to the prosecu- (g) Rex v. Rowland, R. & M. N. P. R. (h) Reg. v. Murphy, 8 C. & P. 297. Change of venue. Point respecting crossexamination where one The Court of King's Bench have refused to change the venue in an indictment for a conspiracy to destroy foxes and other vermin, on the ground that the gentlemen who were likely to serve on the jury to try the indictment were much addicted to fox-hunting. (¿) In a recent case, a point arose as to the extent to which the counsel for the prosecution in a case of conspiracy might crossexamine a witness, called by only one of several defendants. The defendant only indictment was against A., B., and C.; and after the case for the calls witnesses. prosecution was closed, C. only called a witness, whom he examined as to a conversation between himself and A.; and it was ruled, that the counsel for the prosecution might cross-examine such witness as to any other conversation between A. and C., although the evidence should tend chiefly to criminate A. (k) If the jury convict of so much of a count, as amounts to an indictable offence, judgment may be passed on the defendants. Punishment. If upon an indictment for conspiracy, the jury find the defendants guilty of so much of the indictment as amounts to a misdemeanor, the Court may pass judgment upon the defendants. The defendants were indicted for conspiring falsely to indict A. B. for keeping a gaming-house, for the purpose of extorting money from the said A. B., and the jury found the defendants guilty of conspiring to indict A. B. for the purpose of extorting money, but not to indict him falsely; and it was held that enough of the indictment was found to enable the Court to give judgment; for in criminal cases, it is sufficient for the prosecutor to prove so much of the charge as constitutes an offence punishable by law; and the jury had found the defendants guilty of conspiring to prefer an indictment for the purpose of extorting money, and that is a misdemeanor whether the charge were or were not false. (1) In former times, persons convicted of a conspiracy at the suit of the King, to accuse another person of a capital offence, were liable to receive what was called the villanous judgment, that is, to lose their liberam legem, whereby they were discredited and disabled as jurors, or witnesses; to forfeit their goods and chattels, and lands for life; to have those lands wasted, their houses rased, their trees rooted up, and their bodies committed to prison. (m) But this judgment was not inflicted upon those who were convicted only of conspiracies of a less aggravated kind, at the suit of the party and for some time past it appears to have been the better opinion, that the villanous judgment is by long disuse become obsolete, not having been pronounced for some ages; and that the punishment for conspiracies in general is, as in the case of other misdemeanors, by fine, imprisonment, and sureties for the good behaviour at the discretion of the Court. (n) (i) Rex v. King, 2 Chitty Rep. 217. (1) Rex v. Hollingberry, 4 B. & C. 329. (m) 1 Hawk. P. C. c. 72, s. 9. 4 Black. Com. 136. (n) Id. ibid. The pillory was also very commonly a part of the punishment until taken away by the 56 Geo. 3, c. 138. See also ante, p. 669, note (d). In a case where the defendants were convicted on an information for a conspiracy to take away the character of one Kempe, and accuse him of murder, by pretended conversations and communications with a ghost that answered by knocking and scratching in Cock-lane, &c., they received the following judgment: Richard Parsons, (the father of the child, who was the principal agent in the pretended communication,) to stand thrice in the pillory, and be imprisoned two years; Eliz. Parsons the mother, to be imprisoned one year; Mary Fraser, a servant who was aiding and assisting, was sent to the house of correction, to hard labour for six months; Moore, the curate of the parish, and one James, were discharged on paying the pro A consequence of the attaint of conspiracy, where the party was Incompetency subject to the villanous judgment, appears to have been incom- as a witness. petency as a witness. (o) A party, therefore, convicted of a conspiracy to bribe witnesses, on an information against the revenue laws, not to appear before the justices of the peace, is incompetent. (p) But this consequence seems not to have attached to other cases of conspiracy at the suit of the party. (q) And in a late case in the Admiralty Court, which underwent much discussion, Sir W. Scott determined, on great consideration, that a conviction for a conspiracy to commit a fraud would not render an affidavit of the convict inadmissible. (r) pro In conclusion of this chapter, it may be mentioned, that, after a conviction for a conspiracy, the defendants must be present in Court when a motion is made on their behalf, in arrest of judgment. (s) And also, that upon a motion for a new trial, after such conviction, all the defendants must be present. (t) And it is not a sufficient excuse for absence, that they are in custody on civil cess; but if they were in custody on criminal process, the case would be different, for then they might be charged with the conspiracy also. (u) But where an indictment has been removed into the Court of King's Bench, after verdict, but before judgment, and set down for argument, it does not appear to be necessary, that the defendants should appear in Court upon the argument, the proceeding being in the nature of a special verdict, and the party not being considered as convicted, until after the Court have determined upon the verdict. (v) secutor 300l. and his costs, which were nearly as much more. Brown, who had published a narrative, and one Day, the printer of a newspaper, had previously made their peace with the prosecutor. (0) Co. Lit. 6 b. 2 Hale, 277. 1 Hawk. P. C. c. 72, s. 9. 1 Phil. Evid. 17. (p) Bushel v. Barrett, R. & M. N. P. R. 434. Gaselee, J., and Littledale, J. (q) 2 Hale, 277. Carth. 416. 1 Hawk. P. C. c. 72, s. 9. All the defendants must be present in Court upon a motion in arrest of judg ment, or for a new trial. VOL. II. CHAPTER THE THIRD. Threats at common law. Rex v. Southerton. Threatening to charge a party with penalties for selling me dicines without But where the threat is calculated to overcome a firm and prudent man, it is indictable. OF THREATS, AND THREATENING LETTERS. It is said, that the dispersing of bills of menace threatening destruction to the lives or properties of those to whom they were addressed, for the purpose of extorting money, is, at common law, a high misdemeanor, punishable by fine and imprisonment. (a) Threats directed against persons immediately under the protection of a Court are offences punishable by fine and imprisonment, as if a man threaten his adversary for suing him, a counseller or attorney for being employed against him, a juror for his verdict, or a gaoler or other ministerial officer for keeping him in his custody, and properly executing his duty. (b) And a precedent is given of an indictment at common law against the attorney of a plaintiff in a cause for writing a letter to the attorney of the defendant, who had obtained a verdict on the evidence of his son, threatening to indict the son for perjury unless the defendant gave up the benefit of the verdict. (c) But it was holden in a modern case, that threatening by letter or otherwise to put in motion a prosecution by a public officer to recover penalties for selling Friar's Balsam, without a stamp, (which by the 42 Geo. 3, c. 56, is prohibited to be vended without a stamped label) for the purpose of obtaining money to stay the prosecution, was not such a threat as a firm and prudent man might not be expected to resist, and, therefore, was not in itself an indictable offence at common law, although it was alleged that the money was obtained, no reference being made to any statute which prohibits such attempt. In this case Lord Ellenborough, C. J., said, "To obtain money under a threat of any kind, or to attempt to do it, is, no doubt, an immoral action; but to make it indictable, the threat must be of such a nature as is calculated to overcome a firm and prudent man. Now, the threat used by the defendant at its utmost extent was no more than that he would charge the party with certain penalties for selling medicines without a stamp. That is not such a threat as a firm and prudent man might not, and ought not, to have resisted. Then what authority is there for considering these as offences at common law? The principal case relied on is that of Rex v. Woodward and others, (d) which was where the defendants, having another man in their actual custody at the time, threatened to carry him to gaol, upon a charge of perjury; and obtained money from him under that threat, in order to permit his release. Was not that an actual duress, such as would have avoided a bond given under the same circumstances? But that is very unlike the present case, which is that of a mere threat to put process in a penal action in force against the party. The law distinguishes between threats of actual violence against the person, or such other threats as a man of common firmness cannot stand against, and other sorts of threats. Money obtained in the former cases, under the influence of such threats, may amount to robbery; but not so in cases of threats of other kinds. But this is a case of threatening, and not of deceit; and it must be a threat of such a kind as will sustain an indictment at common law, either according to one case, attended with duress, or, according to others, such as may overcome the ordinary free will of a firm man, and induce him from fear to part with his money. The present case is nothing like any of those; it is a mere threat to bring an action, which a man of ordinary firmness might have resisted." (e) It appears that, according to the principles laid down in this case, an indictment will lie, at common law, for extorting money by actual duress, or by such threats as common firmness is not capable of resisting. Therefore, where money is extorted from a party by the threat of accusing him of an unnatural crime, and from the circumstances of the case the offence does not amount to robbery, (f) there seems no reason to doubt but that it is indictable as a misdemeanor at common law. (g) Demanding property with menaces, with intent to steal; ac- Offences by cusing, or threatening to accuse of an infamous crime with an in- statutes. tent to extort property, and by such accusation or threat actually extorting; the sending or delivering of a threatening letter, or writing to any person, thereby threatening to kill or murder, or to burn or destroy, or thereby with menaces demanding property; accusing, or threatening to accuse, or sending or delivering a letter, &c., accusing or threatening to accuse of certain crimes with intent to extort money, &c., are offences of the degree of felony by the provisions of recent statutes. 4 Geo. 4, recites 9 The 4 Geo. 4, c. 54, s. 3, recites, that whereas by the 9 Geo. 1, c. 22, s. 1, it is enacted, "that if any person or persons shall knowingly send any letter without any name subscribed thereto, or signed with a fictitious name, demanding money, venison, or other valuable thing, or shall forcibly rescue any person being lawfully in custody of any officer or other person for any such offence, or shall, by gift or promise of money or other reward, procure any of his Majesty's subjects to join him or them in any such unlawful act, every person so offending, being thereof lawfully convicted, shall be adjudged guilty of felony, and shall suffer death, as in cases of felony without benefit of clergy;" and whereas by the 27 Geo. 2, c. 15, it is among and 27 Geo. 2, other things enacted, "that if any person or persons shall knowingly c. 15, send any letter, without any name subscribed thereto, or signed with a fictitious name or names, letter or letters, threatening to kill (e) Rex v. Southcrton, 6 East. R. 126, 140. And see vol. 1, p. 132. (f) Ante, vol. 1, p. 881, et seq. (g) See a precedent in 3 Chit. Crim. L. 841. |
