Odger's English Common Law

THE AGREEMENT. 257
due proof of the conspiracy, evidence against the other. If
the projected crime be committed, the prisoners may be
indicted for that crime or for the conspiracy, or for both.
This is so, even where the crime projected is a felony ; for
though it was an ancient rule of the common law that in such
a case the conspiracy, being only a misdemeanour, merged
in the felony, it has since been provided by statute that a
defendant indicted for a misdemeanour is not entitled to be
acquitted on the ground that the evidence proved that he had
committed a felony. 1
In every conspiracy two persons at least must be concerned.
And such two persons must not be husband and wife ; for
here the old common law rule still holds good that husband
and wife are one person in law. If A. and B. are jointly
indicted for a conspiracy and A. is acquitted, B. must be
acquitted too, however criminal his conduct may have been.
This is so, even where he has pleaded guilty to the charge. 2
But a man may be indicted alone for conspiring "with other
persons to the jurors unknown," or with persons who have
since died, or with a person who is specially protected by
statute from any penal consequences of the act which they
had conspired to do. 8
A criminal conspiracy, then, is an agreement to carry out
an unlawful common purpose or to carry out a lawful common
purpose in an unlawful manner. But it is necessary to
explain the meaning of the word "unlawful" in this
definition; for the word is often loosely used.
Clearly, every conspiracy to commit a crime is criminal. So
are most conspiracies to commit a tort. But not every con-
spiracy to commit a tort is criminal. Thus in R. v. Turner
and others,* it was held that a combination of eight persons
to commit a merely civil trespass in the bond fide assertion of
an alleged common right was not indictable. But the phrase
i 14 & 15 Vict. c. 100, s. 12.
2 B. v. Plummer, [1902] 2 K. B. 339.
3 S. v. Duguid (1906), 94 L. T. 887. And see S. v. Perrin (1908), 72 J. JP. 144.
* (1811), 13 East, 228 ; this decision was adversely criticised by Lord Campbell
in it. v. Rowlands (1851), 17 Q. B. 671 ; but the latter case was in its turn doubted
in Mogul Steamship Co. v. McGregor (1889), 23 Q. B. D. 598 ; and in Allen v.
Flood, [1898] A'. 0.1.
B.C.L.
17