he may generally introduce evidence to show by circumstances, or even testify himself, that his intent was different from that charged.57 So, where he has possession of stolen property or the like, or other circumstances indicating or leading to the inference of his guilt have been shown by the prosecution, he may introduce competent evidence to explain his possession or otherwise rebut the evidence of the prosecution.58 v. People, 165 Ill. 618, 46 N. E. 809; State v. Bell, 29 Iowa 316; but compare, State v. Shores, 31 W. Va. 491, 7 S. E. 413, 13 Am. St. 875. 57 State v. Meche, 42 La. Ann. 273, 7 So. 573; People v. Griffin, 77 Mich. 585, 43 N. W. 1061. 58 See, Henderson v. State, 70 Ala. 23, 45 Am. R, 72; Leslie v. State, 35 Fla. 171, 17 So. 555; Roberson v. State, 40 Fla. 509, 24 So. 474; Hays v. State, 30 Tex. App. 472, 17 S. W. 1063; State v. Owsley, 111 Mo. 450, 20 S. W. 194; as to good character and financial circumstances, see, Cavender v. State, 126 Ind. 47, 25 N. E. 875. § 2920. Generally-Distinction between civil and criminal conspiracy. The scope of this chapter is to treat distinctively the rules of proof in criminal conspiracy, avoiding, except incidentally, any treatment of such rules as apply in civil actions for damages occasioned by wrongful or unlawful conspiracies. However, it may be proper in a general and preliminary way to note the distinction between civil and criminal conspiracies. By civil conspiracy is meant such a conspiracy as will furnish a basis for a civil action for dam ages. A criminal conspiracy may be complete without in any way affecting or damaging any particular person. But to afford the basis of a civil action for damages the proof must show that the alleged conspiracy was carried out and operated to the injury of the party complaining. A criminal conspiracy when fully executed may also fall within the term civil conspiracy. And it is barely possible that every civil conspiracy has within it some of the characteristics, if not the essential ingredients, of a criminal conspiracy. The dicta of the cases are to the effect that the gist of the criminal conspiracy is the unlawful combination, and the gist of the civil conspiracy is the injury or damage actually done.1 § 2921. Definition.-Courts and law writers recognize the difficulty in defining criminal conspiracy. But general definitions are given which may aid in determining the nature and character of the offense, if not regarded as exact in each particular case. The most comprehensive statement and the most generally accepted definition is that it is the combination or conspiracy of two or more persons for the ac 1 1 Brown v. Jacobs &c. Co., 115 Ga. 429, 41 S. E. 553; Herron v. Hughes, 25 Cal. 560; Dowdell v. Carpy, 129 Cal. 168, 61 Pac. 948; State v. Rowley, 12 Conn. 101; State v. Glidden, 55 Conn. 46, 8 Atl. 890; Anderson v. Jett, (Ky.) 6 L. R. A. 390; Texas &c. Co. v. Adoue, 83 Tex. 650, 19 S. W. 274; Park &c. Co. v. National &c. Asso., 30 App. Div. (N. Y.) 508, 52 N. Y. S. 475; People v. Chicago &c. Gas Co., 130 Ill. 268, 22 N. E. 798, 8 L. R. A. 497; McHenry v. Sneer, 56 Iowa 649, 10 N. W. 234; Kimball v. Harman, 34 Md. 407; Garing v. Fraser, 76 Me. 37; Commonwealth v. Waterman, 122 Mass. 43; Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 1077; Plant v. Woods, 176 Mass. 492, 57 N. E. 1011; Bush v. Sprague, 51 Mich. 41, 16 N. W. 222; State v. Donaldson, 32 N. J. L. 151; Hutchins v. Hutchins, 7 Hill (N. Y.) 104; Adler v. Fenton, 24 How. (U. S.) 407; People v. Sheldon, 139 N. Y. 251, 34 N. E. 785; State v. Younger, 1 Dev. L. (N. Car.) 357; Laverty v. Vanarsdale, 65 Pa. St. 507; Morris Run &c. Co. v. Barclay &c. Co., 68 Pa. St. 173, 187; State v. Stewart, 59 Vt. 273, 9 Atl. 559; Boutwell v. Marr, 71 Vt. 1, 42 Atl. 607; Smith v. Nippert, 76 Wis. 86, 44 N. W. 846; Martens v. Reilly, 109 Wis. 464, 84 N. W. 840; United States v. Weber, 114 Fed. 950; United States v. Addyston &c. Co., 29 C. C. A. 141, 85 Fed. 271; United States v. Trans-Missouri &c. Asso., 166 U. S. 290, 17 Sup. Ct. 540; United States v. Cassidy, 67 Fed. 698; East Nissouri v. Horseman, 16 U. C. Q. B. 556; Mogul &c. Co. v. McGregor, L. R. 21 Q. B. 544; Huttley v. Simmons, 1 Q. B. (1898) 181; Rex v. Journeymen Taylors, 8 Mod. 11; Savile v. Roberts, 1 Ld. Raym. 374. 378; see, 1 Eddy Combinations, §§ 171, 340; for a collection of authorities on the question of civil conspiracy, see, 8 L. R. A. 497, note; 57 L. R. A. 547, note. complishment of an unlawful purpose; or such a combination or conspiracy of two or more persons to effect a lawful purpose by unlawful methods or means.2 Mr. Bishop defines it as follows: "Conspiracy is the corrupt agreeing together of two or more persons to do by concerted action something unlawful, either as a means or as an end. The unlawful thing must be such as would be indictably performed by one alone, or, not being such, be of the nature particularly adapted to injure the public or some individual by reason of the combination." The Supreme Court of Massachusetts in an early case recognized the difficulty of accurately defining this crime, and say: "But the great difficulty is in framing any definition or description, to be drawn from the decided cases, which shall specifically identify this offense-a description broad enough to include all cases punishable under this description, without including acts which are not punishable. Without attempting to review and reconcile all the cases, we are of opinion that, as a general description, though perhaps not a precise and accurate definition, a conspiracy must be a combination of two or more persons by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means. We use the terms criminal or unlawful, because it is manifest that many acts are unlawful which are not punishable by indictment or other public prosecution; and yet there is no doubt, we think, that a combination by numbers to do them would be an unlawful conspiracy, and punishable by indictment.” As defined by an inferior court of Ohio, "a conspiracy is a combination of two or more persons by some concert of action to accomplish Clinton v. Estes, 20 Ark. 216; Smith v. People, 25 Ill. 9; Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898; Orr v. People, 63 Ill. App. 305; Sparks v. Commonwealth, 89 Ky. 644, 20 S. W. 167; State v. Slutz, 106 La. Ann. 182, 30 So. 298; State v. Mayberry, 48 Me. 218; Ellzey v. State, 57 Miss. 826; Commonwealth v. Hunt, 4 Metc. (Mass.) 111; Hart v. Hicks, 129 Mo. 99, 31 S. W. 351; State v. Davies, 80 Mo. App. 239; State v. Kennedy, 177 Mo. 98, 75 S. W. 979; State v. Donaldson, 32 N. J. L. 151; State v. Burnham, 15 N. H. 396; State v. Straw, 42 N. H. 393; State v. Stewart, 59 Vt. 1, 9 Atl. 559; Boutwell v. Marr, 71 Vt. some criminal or unlawful purpose, or some purpose not in itself criminal or unlawful by criminal or unlawful means. § 2922. Statutory conspiracy.-The United States and some of the states have statutes prescribing penalties against conspiracy. But these statutes do not profess to enumerate the acts necessary to constitute the offense; the prohibition under the statute of the United States extends to two or more persons who conspire either to commit any offense against the United States or to defraud the United States in any manner or for any purpose. Some of these statutes further provide that if one or more of the parties to the conspiracy do any act in carrying out the conspiracy then all the parties to such conspiracy shall be liable. Under such a statute it has been held necessary to prove three elements in order to establish the offense: (1) The act of two or more persons conspiring together; (2) to commit any offense against the United States; (3) the overt act or the doing of any act to effect the object of the conspiracy. Under such statutes it has been held that it was not essential to state the name of the other persons with whom the defendant conspired, and it was not necessary to allege the acts done." The decided cases holding the proof sufficient to establish a conspiracy under the statute are better precedents than abstract rules.8 § 2923. Conspiracy not an attempt to commit crime.-A distinction exists between a conspiracy and an attempt to commit a crime. It may be admitted, however, that conspiracy in some of its essential features is very closely akin to an attempt to commit a crime. And it is equally true that in some instances the proof that would support a charge of an attempt would also be sufficient to prove a conspiracy. In discussing the resemblance which a conspiracy bears to an attempt to commit crime the Supreme Court of Connecticut say: "It differs from the common-law attempt, in that it is not merged in the crime intended; if that crime is actually committed, as well as in other respects. But in many cases the separating line between the offense of a conspiracy State v. Snell, 2 Ohio N. P. 55; Owens v. State, 84 Tenn. 1; Girdner v. Walker, 1 Heisk. (Tenn.) 186; 3 Greenleaf Ev., § 89. United States v. Barrett, 65 Fed. 62; United States v. Cassidy, 67 Fed. 698; United States v. Benson, 17 C. C. A. 293, 70 Fed. 591; United States v. Dunbar, 27 C. C. A. 488, 83 Fed. 151; United States v. Stevens, 27 Fed. Cas. No. 16392. 7 United States v. Dunbar, 27 C. C. A. 488, 83 Fed. 151. 88 Cyc. Law & Proc. 628, n. 44. Cases cited. |