a preconcerted assault upon him by several persons, it becomes necessary to prove a conspiracy to show the relations of the accused persons to one another. But generally it is not material that the plan which was carried out differs widely from the original plan, nor will it be required to show the existence of any previous plan if, from the evidence, it seems clear that there had been negotiations to the same end."0

§ 491. Circumstantial evidence.-Direct evidence is not essential to prove the conspiracy. It need not be shown that the parties actually came together and agreed in express terms to enter in and pursue a common design." The existence of the assent of minds which is involved in a conspiracy may be, and, from the secrecy of the crime, usually must be, inferred by the jury from proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole.92 If

it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their acts, though apparently independent, were in fact connected and co-operative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting among them to concert means is proved.93 Evidence of actual participation, rather than of passive acquiescence, is desirable. But proof of acquiescence in, or consent to, the actions of others is relevant to show the criminal intention of the passive party, and generally the smallest degree of consent or collusion among parties lets in the act or words of one against the others." The details of the conspiracy need not be proved. If a community of purpose among the parties to do some criminal act or acts is shown, it is not necessary that the acts which are charged, or of which evidence has been given, were specifically contemplated by them or included in the original design. In other words, if some general community of interest and purpose to do some act is shown, the declarations are admissible.

444, 95 S. W. 477; Brummett v. Commonwealth (Ky.), 108 S. W. 861, 33 Ky. L. 355; People v. Simmons, 125 App Div. (N. Y.) 234, 109 N. Y. S. 190; Lawrence v. State, 103 Ind. 17, 63 Atl. 96; Collins v. State, 138 Ala. 57, 34 So. 993; Butt v. State, 81 Ark. 173, 98 S. W. 723, 118 Am. St. 42; Smith v. State, 46 Tex. Cr. 267, 81 S. W. 936, 108 Am. St. 991; State v. Lewis, 51 Ore. 467, 94 Pac. 831; People v. Moran, 144 Cal. 48, 77 Pac. 777; Ripley v. State, 51 Tex. Cr. 126, 100 S. W. 943; United States v. Cole, 153 Fed. 801.

Classification of, 97 Am. St. 773, note; liberality of rule admitting, 97 Am. St. 782; necessity for receiving, 07 Am. St. 772; facts admissible, 97 Am. St. 782; relative value of circumstantial and direct evidence, 97 Am. St. 774; when regarded as secondary, 97 Am. St. 788; to corroborate other

evidence, 97 Am. St. 788; instances of admissibility, 97 Am. St. 782; flight admissible as, 97 Am. St. 784; not admissible when direct evidence is withheld, 97 Am. St. 788; when insufficient to sustain a conviction, 97 Am. St. 774-778; must exclude every reasonable hypothesis except that of guilt. 97 Am. St. 776; failure of to explain suspicious circumstances, 97 Am. St. 783.

93

Spies v. People, 122 Ill. I, 101158, 12 N. E. 865, 17 N. E. 898, 3 Am. St. 320n; Archer v. State, 106 Ind. 426, 7 N. E. 225; Lawrence v. State. 103 Md. 17, 63 Atl. 96. Evidence to show that the conspirators were acquainted with one another, and were endeavoring to meet each other, is relevant. Reinhold v. State, 130 Ind. 467, 470, 30 N. E. 306.

* State v. Anderson, 92 N. Car. 732, 737, 747.

though a conspiracy to commit the offense in question is not proved. 95

$ 492. Admissibility of acts and declarations of co-conspirators.If a conspiracy is proved prima facie the acts or the declarations of any conspirator done in its prosecution and furtherance, or which form a part of the res gesta of any act designed to advance the object of the conspiracy, which is already in evidence are admissible against any or all of the conspirators.96 The safest

97

rule is to satisfy the jury by a prima facie case that a conspiracy existed and then to offer evidence of the declarations of any conspirator. However, as will be elsewhere explained, the declarations are often received before there is any proof of a conspiracy, and then, if the conspiracy be not shown, the jury is instructed to disregard the declarations. The rule is applicable where the conspirators are separately tried. The declarations of other conspirators jointly indicted, but separately tried may be received against the accused who is on trial. It is not necessary to show that the accused took part in every act of the conspiracy or that he had actual knowledge of every act.98 But mere knowledge by one of the conspirators that the others were involved in some criminal scheme does not necessarily permit the declarations or acts of the others to be received against him. It is only where knowledge and active participation or an express or implied ratification can be proved that one conspirator is bound by the statements or declarations of another.""

For illustration, where a conspiracy is proved in substance the state may prove the acts and declarations of one conspirator on the trial of another though the person whose conduct and language are proved has not been arrested.100 The principle at the

Atl. 96; Graff v. People, 208 Ill. 312, 70 N. E. 299; State v. Stockford, 77 Conn. 227, 58 Atl. 769, 107 Am. St. 28; State v. Roberts, 201 Mo. 702, 100 S. W. 484; Hanners v. State, 147 Ala. 27, 41 So. 973; Marrash v. United States, 168 Fed. 225; Cabrera v. State (Tex. Cr., 1909), 118 S. W. 1054; Chicago, &c., Coal Co. v. People, 214 Ill. 421, 73 N. E. 770; Holt v. State, 39 Tex. Cr. 282, 45 S. W. 1016, 46 S. W. 829; Christensen v. People, 114 Ill. App. 40; Snelling v. State (Tex. Cr. App., 1909), 123 S. W. 610; State v. Kennedy (S. Car., 1910), 67 S. E. 152.

Prima facie evidence of conspiracy, Elliott Evidence, § 2942; admissibility of declarations of conspirators, Elliott Evidence, §§ 2936, 2939, 2940, 2941, 2943, 2944; 1 L. R. A. 273, note, 12 L. R. A. 197, note; 19 L. R. A.

745, note; 3 Am. St. 482, 485; two or more engaged, Elliott Evidence, § 2935; order of proof, § 2934; proof of formal agreement not necessary, $ 2938; presumptions, 3 Am. St. 843; proof when conspirators are not named, Elliott Evidence, § 2945; labor combinations, strikes, boycotts and picketing, Elliott Evidence, $$ 2945, 2951; proof of overt acts, $$ 2946, 2947, 2948; weight and sufficiency of circumstantial evidence, 68 L. R. A. 213, note.

basis of this rule is that which regulates the competency of the admissions of partners against each other. When men are associated for a common purpose, and with a common object in view, the law, presuming that the benefits, if any, which may ensue from their accomplishment will be shared by all, impresses upon the conspirators or partners, collectively, the attribute of individuality so far as the common design in concerned. No member of the combination will be permitted to escape the consequences of the actions or words of his associates. But the acts or declarations, in order to be admissible, must have been made in further. ance of the common design, or must accompany and explain such an act or declaration.1 The fact that declarations were made by a conspirator before the defendant became associated with the conspiracy does not render them inadmissible against him. But his subsequent connection therewith must be shown and knowledge of the existence of the declarations be brought home to him or circumstances shown from which such knowledge and a ratification by him may be implied or inferred."

§ 493. Must be made during existence of, and in furtherance of, conspiracy. That the accused was not present when the declaration, which is introduced against him, was uttered by a fellowconspirator, does not of necessity render it incompetent if it conforms to the rule in other respects. But those declarations only

1 State v. McGee, 81 Iowa 17, 22, 46 N. W. 764; Long v. State, 13 Tex. App. 211; Horton v. State, 66 Ga. 690, 695; Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St. 320n; People v. Stanley, 47 Cal. 113, 120, 17 Am. 401; Walton v. State, 88 Ind. 9, 15; Card v. State, 109 Ind. 415, 418, 9 N. E. 591; McKee v. State, 111 Ind. 378, 382, 12 N. E. 510; State v. Melrose, 98 Mo. 594, 12 S. W. 250; Kunde v. State, 22 Tex. App. 65, 3 S. W. 325; People v. McQuade, 110 N. Y. 284, 18 N. E. 156; State v. Larkin, 49 N. H. 39; People v. Irwin, 77 Cal. 494, 20 Pac. 56; State v. Grant, 86 Iowa 216, 53 N. W. 120; Hall v.

3

Commonwealth (Ky.), 31 Ky. L. 64,
IOI S. W. 376; Wallace v. State, 46
Tex. Cr. 341, 81 S. W. 966; Miller v.
State, 139 Wis. 57, 119 N. W. 850;
O'Brien v. State, 69 Neb. 691, 96 N.
W. 649; Dolan v. United States, 123
Fed. 52, 59 C. C. A. 176.

2 Lamar v. State, 63 Miss. 265, 272; Cox v. State, 8 Tex. App. 254, 34 Am. 746; Browning v. State, 30 Miss. 656; Avery v. State, 10 Tex. App. 199, 212; Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St. 3200; United States v. Babcock, 3 Dill. C. C. (U. S.) 581, 586, 24 Fed. Cas. 14487.