time and place of its commission, or even as to the means to be employed to carry it into effect, where the object of the conspiracy is unlawful.9

All of the conspirators need not enter into the agreement at the same time. When a new party, with knowledge of the facts, concurs in the plans of the original conspirators, and comes in to aid in the execution of them, he is from that moment a co-conspirator, and is responsible for all acts theretofore or thereafter done by the others in furtherance of the object of the conspiracy.10

intention to commit them, coupled with proof of intentional participation in or connection with the acts committed, may support a finding of guilt. United States v. Stilson, 254 Fed. 120, aff'd 250 U. S. 583, 63 L. Ed. 1154, 40 Sup. Ct. 28.

8 United States v. Downey, 257 Fed. 364; State v. Sabato, 91 N. J. L. 370, 103 Atl. 807; People v. Willis, 34 N. Y. App. Div. 203, 54 N. Y. Supp. 642, aff'd 158 N. Y. 392, 53 N. E. 29.

To sustain a prosecution for conspiracy to suborn perjury, they need not have agreed as to the precise persons to be suborned, or the time and place of such suborning. Williamson v. United States, 207 U. S. 425, 52 L. Ed. 278, 28 Sup. Ct. 163.

It is not necessary to constitute a conspiracy to injure and destroy the property of a named person that the conspirators determine in advance what particular property should be injured or destroyed. Lanasa State, 109 Md. 602, 71 Atl. 1058.

V.

To sustain a prosecution for conspiracy to defraud the United States of public lands subject to homestead entry in a certain county, it is not necessary that the precise lands to be acquired shall have been identified in the minds of the conspirators. Dealy v. United States, 152 U. S. 539, 38 L. Ed. 545, 14 Sup. Ct. 680.

It is not necessary to sustain a prosecution for a conspiracy to transport liquor into a dry state that the

conspirators shall have known or agreed upon the particular place from which the liquors were to be transported. Hockett v. United States,

265 Fed. 588.

9 See § 488, infra.

10 United States. Holmes v. United States, 267 Fed. 529, certiorari denied 254 U. S. 640, 65 L. Ed. 452, 41 Sup. Ct. 13; Samara v. United States, 263 Fed. 12; Thomas v. United States, 156 Fed. 897; United States v. Cassidy, 67 Fed. 698; United States v. Sacia, 2 Fed. 754.

Alabama. Eaton v. State, 8 Ala. App. 136, 36 So. 41.

California. People v. MacPhee, 26 Cal. App. 218, 146 Pac. 522; People v. Kizer, 22 Cal. App. 10, 133 Pac. 516, 521, 134 Pac. 346.

Delaware. State v. Clark, 9 Houst. 536, 33 Atl. 310.

Illinois. Cooke v. People, 231 Ill. 9, 82 N. E. 863, aff'g 134 Ill. App. 41; Ochs v. People, 124 Пl. 399, 16 N. E. 662; Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320.

Indiana. Roberts v. State, 188 Ind. 713, 124 N. E. 750; Eacock v. State, 169 Ind. 488, 82 N. E. 1039.

New York. People v. Mather, 4 Wend. 229, 21 Am. Dec. 122. Oklahoma. Wishard V. State, 5 Okla. Cr. 610, 115 Pac. 796.

Pennsylvania. Com. v. Anderson, 64 Pa. Super. Ct. 427.

Texas. Sapp v. State, 80 Tex. Cr.

§ 484. Necessity for two conspirators. The crime of conspiracy cannot be committed by less than two persons, for, in the nature of things, less than two cannot make an agreement.11

At common law, husband and wife are regarded as but one person, so that they cannot enter into an agreement, and therefore they cannot be guilty of conspiracy; and this rule still obtains, unless the common law has been changed by statute.12 But it has been held not to apply under some of the modern married women's acts.18 And it does not in any event exempt the wife from the consequences of criminal acts committed by her in the execution of a conspiracy jointly with her husband which are themselves subjects of criminal prosecution.14

A person may conspire with his employee,15 and a corporation with its officers and agents.16 And the officers and agents of a single corporation may conspire together in respect to the business of the cor

363, 190 S. W. 489; Smith v. State, 46 Tex. Cr. 267, 81 S. W. 936, 108 Am. St. Rep. 991.

Virginia. Sands v. Com., 21 Gratt.

871.

The coming in of such person does not destroy the identity of the conspiracy, but it continues the same conspiracy. Eacock v. State, 169 Ind. 488, 82 N. E. 1039.

11 United States. Union Pacific Coal Co. v. United States, 173 Fed. 737; United States v. New York Cent. & H. River R. Co., 146 Fed. 298.

California. People v. Richards, 67 Cal. 412, 7 Pac. 828, 56 Am. Rep. 716. Connecticut. State v. Setter, 57 Conn. 461, 18 Atl. 782, 14 Am. St. Rep. 121; State v. Glidden, 55 Conn. 46, 8 Atl. 890, 3 Am. St. Rep. 23.

Iowa. State v. Crofford, 133 Iowa 478, 110 N. W. 921.

New Jersey. State v. Dougherty, 88 N. J. L. 209, 96 Atl. 56, rev'g 86 N. J. L. 525, 93 Atl. 98.

New Mexico. United States V. Santa Rita Store Co., 16 N. M. 3, 113 Pac. 620.

New York. People v. Hamilton, 165 App. Div. 546, 151 N. Y. Supp. 125.

Oregon. State v. Smith, 55 Ore. 408, 106 Pac. 797.

Texas. Dever v. State, 37 Tex. Cr. 396, 30 S. W. 1071; Woodworth v. State, 20 Tex. App. 375.

And see other cases cited in the following notes.

12 Alabama. State v. Covington, 4 Ala. 603.

California. People v. Miller, 82 Cal. 107, 22 Pac. 934.

Delaware. State v. Clark, 9 Houst. 536, 33 Atl. 310.

Wisconsin. Jones v. Monson, 137 Wis. 478, 119 N. W. 179, 129 Am. St. Rep. 1082.

13 Dalton v. People, 68 Colo. 44, 189 Pac. 37; Smith v. State, 48 Tex. Cr. 233, 89 S. W. 817; Smith v. State, 46 Tex. Cr. 267, 81 S. W. 936, 108 Am. St. Rep. 991.

14 State v. Clark, 9 Houst. (Del.) 536, 33 Atl. 310; Jones v. Monson, 137 Wis. 478, 119 N. W. 179, 129 Am. St. Rep. 1082.

15 Hyde v. United States, 225 U. S. 347, 56 L. Ed. 1114, 32 Sup. Ct. 793. 16 Corporations and their officers and

poration.17 And a corporation may be counted as a party although it is not subject to indictment for the conspiracy under the statute, but only to a forfeiture of its charter or its right to do business in the state.18 But a conspiracy between a corporation and its officer or agent cannot be formed by the thoughts or acts of the officer or agent alone, without the conscious participation in it of any other officer or agent of the corporation.19 Nor can a conspiracy between two corporations be formed by the acts and thoughts of one person acting as the agent of both.20

Another result of the necessity of two persons to commit this offense is that, where two are indicted, the guilt of both must be proved,21 and an acquittal of one is necessarily an acquittal of the other 22 And if both are convicted and a new trial is granted to one of them, a new trial must also be granted to the other.23 But an acquittal of one of two persons charged with a substantive offense other than conspiracy, is not an adjudication that they had not con

agents who conceive, effect and carry out a conspiracy can both be considered and counted in computing the necessary number to constitute it. State v. Standard Oil Co., 120 Tenn. 86, 110 S. W. 565; Standard Oil Co. v. State, 117 Tenn. 618, 100 S. W. 705, 10 L. R. A. (N. S.) 1015.

17 They cannot escape liability for a conspiracy to injure trade and commerce through the medium of the corporation on the theory that their acts are those of the corporation, and that it is but one person. People v. Duke, 19 N. Y. Misc. 292, 44 N. Y. Supp. 336.

18 Standard Oil Co. v. State, 117 Tenn. 618, 100 S. W. 705, 10 L. R. A. (N. S.) 1015.

19 Union Pacific Coal Co. v. United States, 173 Fed. 737.

20 United States v. Santa Rita Store Co., 16 N. M. 3, 113 Pac. 620.

21 Feder v. United States, 257 Fed. 694; People v. Hamilton, 165 N. Y. App. Div. 546, 151 N. Y. Supp. 125; People v. Miles, 123 N. Y. App. Div. 862, 108 N. Y. Supp. 510, aff'd 192 N. Y. 541, 84 N. E. 1117.

A person cannot be convicted of a conspiracy to pervert the due administration of the laws, where his co-conspirator was a detective whose sole purpose in entering into the agreement was to detect the defendant in a violation of the law. State v. Dougherty, 88 N. J. L. 209, 96 Atl. 56, rev'g 86 N. J. L. 525, 93 Atl. 98.

22 Iowa. State V. Crofford, 133 Iowa 478, 110 N. W. 921.

New York. People v. Olcott, 2 Johns. Cas. 301, 1 Am. Dec. 168. Pennsylvania. Com. v. Edwards, 135 Pa. 474, 19 Atl. 1064.

Texas. Holt v. State, 39 Tex. Cr. 282, 45 S. W. 1016, 46 S. W. 829; Dever v. State, 37 Tex. Cr. 396, 30 S. W. 1071; Paul v. State, 12 Tex. App. 346.

England. Rex v. Niccolls, 2 Strange

1227.

23 Feder v. United States, 257 Fed. 694.

It is error to affirm a judgment of conviction as to one and reverse it as to the other. People v. La Bow, 282 Ill. 227, 118 N. E. 395.

spired to commit that offense so as to render the acts and declarations of the person so acquitted inadmissible on the trial of the other for such substantive offense.24

If more than two are charged, at least two must be shown to be guilty,25 but it is not necessary that more than two be convicted.26 Failure to prosecute all of the conspirators does not prevent the prosecution of part of them.27 It is not necessary to join all of them as defendants in a single prosecution, but one alone may be convicted on proof of a conspiracy of which he was a member.28 And an indictment against a single defendant charging him with conspiracy with a person or persons unknown is good.29 If several charged with conspiracy are tried separately, a judgment may be pronounced against one before a conviction of the others.30 And one charged with conspiracy with others named may be convicted on proof of a conspiracy with any of the others named, without proof of a conspiracy participated in by all of them.31

The death of one of two conspirators before conviction will not

24 Musser v. State, 157 Ind. 423, 61 N. E. 1; State v. Crofford, 133 Iowa 478, 110 N. W. 921; Holt v. State, 39 Tex. Cr. 282, 45 S. W. 1016, 46 S. W. 829.

25 People v. La Bow, 282 Ill. 227, 118 N. E. 395; People v. Pouchot, 174 Ill. App. 1.

26 Hyde v. United States, 225 U. S. 347, 56 L. Ed. 1114, 32 Sup. Ct. 793, aff'g 35 App. Cas. (D. C.) 451; Bryant v. United States, 257 Fed. 378; People v. Miles, 123 N. Y. App. Div. 862, 108 N. Y. Supp. 510, aff'd 192 N. Y. 541, 84 N. E. 1117.

Where the indictment charges a conspiracy between two named defendants and divers other persons whose names are to the grand jury unknown, an acquittal of one of the named defendants will not nullify a previous plea of guilty by the other. Com. v. Edwards, 135 Pa. 474, 19 Atl. 1064.

27 Cohen v. United States, 157 Fed. 651, certiorari denied 207 U. S. 596, 52 L. Ed. 357, 28 Sup. Ct. 261.

28 People v. Richards, 67 Cal. 412, 7 Pac. 828, 56 Am. Rep. 716; State v. Smith, 55 Ore. 408, 106 Pac. 797; Heine v. Com., 91 Pa. St. 145.

The fact that an indictment or information against one alone names the other conspirator does not vitiate it. People v. Richards, 67 Cal. 412, 7 Pac. 828, 56 Am. Rep. 716.

29 People v. Richards, 67 Cal. 412, 7 Pac. 828, 56 Am. Rep. 716; Com. v. Edwards, 135 Pa. St. 474, 19 Atl. 1064.

This is true, though the names of the co-conspirators must actually have been known to the grand jury. People v. Mather, 4 Wend. (N. Y.) 230, 21 Am. Dec. 122.

30 Eacock v. State, 169 Ind. 488, 82 N. E. 1039.

31 Hardy v. United States, 256 Fed. 284; Breese v. United States, 203 Fed. 824, aff'g 173 Fed. 402; Eacock v. State, 169 Ind. 488, 82 N. E. 1039; People v. Rose, 101 N. Y. Misc. 650, 168 N. Y. Supp. 933; Woodworth v. State, 20 Tex. App. 375.

have the effect of preventing the conviction of the other conspirator.32

§ 485. Overt act-Necessity for overt act. At common law, and except where the rule has been changed by statute, the offense is complete when the conspiracy or agreement is entered into. To make it indictable nothing whatever need be done in execution of it, and no overt act is necessary.33 Statutes in many states, however, require both an agreement and an overt act in furtherance of it to constitute a criminal conspiracy, either generally or in conspiracies of a certain class.34 Under the federal statutes, for example, an overt act must be shown in prosecutions for conspiracies to commit an offense against

32 People v. Olcott, 2 Johns. Cas. (N. S.) 301, 1 Am. Dec. 168; Rex v. Niccolls, 2 Strange 1227.

33 United States. United States v. Brace, 149 Fed. 874.

Alabama. Thompson v. State, 106 Ala. 67, 17 So. 512; Smith v. State, 8 Ala. App. 187, 62 So. 575; State v. Cawood, 2 Stew. 360.

Arkansas. Powell v. State, 133 Ark. 477, 203 S. W. 25.

Illinois. People v. Blumenberg, 271 Ill. 180, 110 N. E. 788.

Maine. State v. Ripley, 31 Me.

386.

Maryland. Garland v. State, 112 Md. 83, 75 Atl. 631, 21 Ann. Cas. 28; Lanasa v. State, 109 Md. 602, 71 Atl. 1058; State v. Buchanan, 5 Har. & J. 317, 9 Am. Dec. 534.

Massachusetts. Com. v. Harris, 232 Mass. 588, 122 N. E. 749; Com. v. Fuller, 132 Mass. 563; Com. v. Judd, 2 Mass. 329, 3 Am. Dec. 54; Com. v. O'Brien, 12 Cush. 84.

Michigan. People v. Richards, 1 Mich. 216, 51 Am. Dec. 75.

Minnesota. State v. Pulle, 12 Minn.

164.

Mississippi. King v. State, 123 Miss. 532, 86 So. 339.

Missouri. State v. Dalton & Fay, 134 Mo. App. 517, 114 S. W. 1132;

State v. Nell, 79 Mo. App. 243.

New Hampshire. State v. Straw, 42 N. H. 393.

New York. People v. Mather, 4 Wend. 229, 21 Am. Dec. 122.

North Carolina. State v. Younger, 1 Dev. 357, 17 Am. Dec. 571.

Pennsylvania. Com. v. Richardson, 229 Pa. 609, 79 Atl. 222, aff'g 42 Pa. Super. Ct. 337; Heine v. Com., 91 Pa. St. 145; Com. v. McKisson, 8 Serg. & R. 420.

Rhode Island.
R. I. 252, 61 Atl.

State v. Bacon, 27 653.

Texas. Dill v. State, 35 Tex. Cr. 240, 33 S. W. 126; Johnson v. State, 3 Tex. App. 590.

Washington. State v. Mardesich, 79 Wash. 204, 140 Pac. 573.

Wisconsin. State v. Crowley, 41 Wis. 271.

England. O'Connell v. Reg., 11 Cl. & F. 155, 1 Cox C. C. 413; Poulterers' Case, 9 Coke 55b; Rex v. Edwards, S Mod. 320.

34 See the statutes of the various states and the following cases:

Arizona. Territory v. Turner, 4 Ariz. 290, 37 Pac. 368.

Arkansas. Powell v. State, 133 Ark. 477, 203 S. W. 25.

California. People v. Daniels, 105 Cal. 262, 38 Pac. 720; People v. Cory,