that he did on or about the 24th day of December, 1892, at the town of Chatham in the said county, unlawfully conspire with one William Irwin, by deceit and falsehood to defraud one James Percy Moore, receiver of the estate of the said Frawley, of the sum of $200 then due to him and to defeat the action then brought by the said Moore against the said Irwin, by pretending and alleging that the said Irwin had paid the said money to the said Frawley and by the said Frawley giving the said Irwin a receipt therefor, dated the 6th day of December, 1892.

Upon the hearing of the said complaint, to wit, upon the 7th day of February, 1894, the defendant by his counsel consented to the said charge being summarily tried before me, the undersigned, and thereupon pleaded not guilty" to the said charge, and atter hearing the evidence and the argument of counsel I found the prisoner guilty.

66

The questions for the opinion of the Court are: (1) Is the intent to defraud in this case, although unsuccessful in carrying out the fraud intended, an indictable offence? (2) Can Frawley be tried alone, the other conspirator being known in the county?

In Easter Sittings, June 8th, 1894, before Rose and MACMAHON, JJ., McBrady appeared for the defendant. The offence here was never perfected. There was merely an intent to defraud which was never carried out. Then as to the second point, one person cannot be indicted and tried alone for conspiracy. A conspiracy must be by two persons at least, and two or more must be indicted. One cannot be convicted of conspiracy unless he has been indicted with persons to the jury unknown or since dead: Archbold's Criminal Pleading and Evidence, 21st ed., 1104-1106; Taschereau's Criminal Code, p. 429; Rex v. Turner, 13 East 228; Broom's Common Law, 8th ed., 983, note (c); Regina v. Steinburg, 8 Legal News 122; Mulcahy v. The Queen, L. R. 3 H. L. 306; Wright's Criminal Conspiracies and American Cases, Black ed., pp. 55, 129; Russell on Crimes, 5th ed., vol. 3, p. 125.

J. R. Cartwright, Q. C., for the Crown. The offence here

was clearly an indictable offence. The gist of the offence is the conspiring together, and not the actual commission of the fraud which was the subject of the conspiracy: Russell on Crimes, 5th ed., vol. 3, p. 127; Regina v. Mulcahy, L. R. 3 H. L. 306, at p. 317. The Criminal Code, sec. 64, is clear on the point. It is there laid down that everyone who having an intent to commit an offence does or omits an act for the purpose of accomplishing his object is guilty of an attempt to commit the offence intended whether under the circumstances it was possible to commit such offence or not. The result of the authorities is that one may be indicted and committed for conspiracy so long as indictment charges that he conspired with another or others. The section 394 of the Code is: "Every one who conspires, etc., not where two or more conspire": Regina v. Manning, 12 Q. B. D. 241; Rex v. Cooke, 5 B. & C. 538; Regina v. Ahearne, 6 Cox C. C. 6; Russell on Crimes, vol. 3, p. 128, note; People v. Olcott, 2 Johns Cas. N. Y. 300; 2 Bishop's Criminal Law, 8th ed., vol. 2, sec. 188.

McBrady, in reply. The only exception to one person being indicted is where the other person to the conspiracy is unknown or dead. Here it is admitted that he was Then as to the other point section 64 does not apply, as the alleged offence was before the passing of the Code.

known and was alive.

Toronto, June 23rd, 1894.

ROSE, J.

I read the first question reserved for our opinion as if stated thus: "Is a conspiracy to defraud indictable where the conspirators have been unsuccessful in carrying out the fraud?" Stating the question thus it answers itself— for a conspiracy is beyond question an indictable offence.

The law is collected in Archbold's Criminal Pleading and Evidence 21st ed., 1087, 1106, et seq.; and Taschereau's Canadian Criminal Acts p. 636. See also Regina v. Conolly, 25 O. R. 151.

The case was argued on the supposition that this was what the question meant, and I so deal with it.

The second question I would also answer in the affirmative.

If A. and B. conspire together, each is guilty of an offence, and I see no reason in principle why each may not 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.

And I venture to think that there is no decision to the contrary. The text writers have, I think, been a little careless in their statement of the law, and so have been misleading.

In the Principles of Criminal Law by Harris, 6th ed., at p. 128, it is thus stated: "The gist of the offence is the combination. Of this offence a single person cannot be convicted, unless indeed, he is indicted with others, who are dead or unknown to the jurors": citing 1 Hawk. P. C. ch. 27, sec. 8, p. 448. But what is there said is, "It plainly appears from the words of the statute that one person alone cannot be guilty of a conspiracy within the purport of it from whence it follows, that if all the defendants who are prosecuted for such a conspiracy be acquitted but one, the acquittal of the rest is the acquittal of that one also."

In Archbold's Criminal Pleading and Evidence, 21st ed., 1106, it is said, "But one person alone may be tried for a conspiracy, provided that the indictment charged him with conspiring with others who have not appeared: Rex v. Kinnersley, Str. 193, or who are since dead: Rex v. Niccolls, 2 Str. 1227." The latter case is better reported in 13 East, p. 412-in a foot note to Rex v. Inhabitants of Oxford.

In Rex v. Kinnersley, two were indicted for conspiracy together, namely, Kinnersley and Moore. Kinnersley only appeared and pleaded to the indictment and was found guilty. The Court, as is found in the head note, there being no full report of the judgments, held that "if one be convicted, judgment shall be given against him before the

trial of the other." Counsel for the Crown in argument said: "Yet as the matter now stands, Moore, himself, is found guilty, for the conspiracy is found as it is laid, and therefore judgment may be given against one before the trial of the other."

This language, I venture to say, affords the test, viz.: Does the indictment set out the conspiracy in accordance with the fact, so that charging A. with conspiring with B. the jury may, on the evidence, find A. guilty of conspiracy as it is laid? If so, it is good pleading, and the verdict finding the fact as laid in the indictment the conviction will be good. Whether A. be indicted alone or with B., it will of course be necessary to aver and prove that A. and B. did conspire together; and if that be not averred, the pleading would, of course be bad, and if it be not proven there could be no conviction of A. if indicted alone, or of either if indicted together.

In Rex v. Nichols, 13 East 412 note, it is thus stated: "The defendant was indicted for a conspiracy at Hick's Hall. The jury found him guilty of a conspiracy with one Bygrave. They likewise found that Bygrave died before this indictment was found." Lee, C.J., said at p. 413: "It is certain that in all conspiracies there must be two at least, or no indictment will lie; and therefore if one be acquitted, the other cannot be guilty. But that case differs; because one being acquitted on record, the conviction of his companion on the same record must be directly repugnant and contradictory to the other. But there can be no contradiction in the present case, any more than where one of the conspirators refuses to come in; yet judgment may be given against him."

The text in the 5th ed. of Russell on Crimes, at p. 127, is more accurate and does not suggest that one may not be indicted alone if it be averred that he conspired with another not found in the indictment.

I do not see how the argument is advanced by considering an indictment where the conspiracy is stated to have been between A. and B. and many other persons, or

between A., B., and persons to the jurors unknown, because with such pleadings the discovery must be proved as laid. See Regina v. Thompson, 5 Cox C. C. 168; and Regina v. Manning, 12 Q. B. D. 241.

In Regina v. Thompson, A., B. and C. were charged with conspiring together, and with divers other persons to the jurors unknown. No evidence was offered affecting any other persons than A. B. and C. The jury found A. guilty, but acquitted B. and C., being of opinion that either B. or C. was guilty, but not being able to determine which of the two. Held, Erle, J., dissenting, that the verdict was inconsistent, and that A. was entitled to an acquittal.

That case shews that the conspiracy charged must be proved. 2. That to charge a conspiracy between one or more and others unknown will not assist unless evidence be given that the conspiracy was with persons unknown.

These cases are certainly no authority for saying that it aids the indictment to charge a conspiracy with persons unknown unless that be in accordance with the fact.

If, therefore, two conspiring together, each be guilty of an offence, and one alone may be tried and convicted on an indictment charging both, though the other does not appear and plead, and one alone may be tried and convicted on an indictment against him alone, the other being dead, I see no reason why one may not be indicted, tried and convicted alone as long as the indictment sets out a conspiracy in which he was a conspirator, whether such conspiracy be between him and one other or others known or unknown, and whether the other conspirators be or be not alive, or within or not within the county or country.

"Can

I have answered this question as if it had been : Frawley be tried alone on an indictment against him only. charging him with conspiracy with another to defraud, etc., the other conspirator being known in the country?" Regina v. Connolly, 25 O. R. 151, may be referred to also as to the form of pleading.

There must be judgment for the Crown.