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•COMPOUNDING OFFENCES, ETC. [*419
informations on penal statutes . . .
Misprision of felony _ ,
Taking rewards for helping to recover stolen goods, etc. .
Compounding felonies. Though the bare taking again of a man's own goods which have been stolen (without favor shown to the thief) is no offence, Hawk. P. C. b. 1, c. 59, s. 7; yet where a man either takes back the goods, or receives other amends, on condition of not prosecuting, this is a misdemeanor punishable by fine and imprisonment. Id. s. 5.1 And so in any other felony an agreement not to prosecute an indictment for reward is punishable as a misdemeanor; though nearly all the precedents of indictments for this species of offence seem to be confined to theft-bote, or that kind of composition of felony which has reference to the recovery of property of which the owner" has been deprived. Where, in an indictment for compounding a felony, it was averred that the defendant did desist, and from that time hitherto had desisted from all further prosecution, and it appeared that after the alleged compounding he prosecuted the offender to conviction, Bosanquet, J., directed an acquittal. R. v. Stone, 4 C. & P. 379, 19 E. C. L.; see 1 Rus. Cri. 293 (k) 5th ed.
Compounding misdemeanors. Whether, at common law, the compounding of misdemeanor is in any case a misdemeanor, is perhaps doubtful. Such agreements, when not made under the permission of a court of justice, are clearly, in many cases, illegal. Collins v. Blantern, 2 Wils. 341; 4 Bl. Comm. 363; Beeley v. Wingfield, 11 East, 46; R. v. Hardey, 14 Q. B. 529, 68 E. C. L. And even when made with the permission of the court, Keir v. Leeman, 9 Q. B. 371, 58 E. C. L.
Compounding informations on penal statutes. By 18 Eliz. c. 5, s. 4, if any informer, by color or pretence of process, or without process upon color or pretence of any manner of offence against any penal law, make any composition, or take any money, reward, or promise of reward, without the order or consent of the court, he shall stand two hours in the pillory, be forever disabled to sue on any popular or penal statute, and shall forfeit ten pounds. This statute does not
1 Taking a promissory note as a consideration for not prosecuting a larceny, is sufficient to constitute the offence. Commonwealth v. Pease, 16 Mass. 91. See Commonwealth v. Corry, 2 Mass. 524. S.
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extend to penalties only recoverable by information before justices. R. v. Crisp, 1 B. & Aid. 282. But it is not necessary, to bring the case within the statute, that there should be an action or other proceeding pending. R. v. Gotley, Russ. & Ry. 84. A mere threat to prosecute for the recovery of penalties, not amounting to an indictable offence at common law, is yet, it seems, within the above statute. R. v. Southerton, 6 East, 126. A person may be convicted, under this *490T *statute, of taking money, though no offence liable to a penalty J has been committed by the person from whom the money is taken. R. v. Best, 2 Moo. C. C. 124; 9 C. & P. 868, 38 E. C. L.
Misprision of felony. Somewhat analogous to the offence of compounding felony is that of misprision of felony. Misprision of felony is the concealment or procuring the concealment of felony, whether such felonies be at common law or by statute. Hawk. P. C. b. 1, c. 59, s. 2. Silently to observe the commission of a felony, without using anv endeavor to apprehend the offender, i3 a misprision. Id. (n); 1 Hale, P. C. 431, 448, 533. If to the knowledge there be added assent, the party will become an accessory. 4 Bl. Comm. 121. The punishment for this offence is fine and imprisonment, and provision against the commission of it by sheriffs, coroners, and other officers, are contained in the 3 Edw. 1, c 9.
Taking rewards for helping to recover stolen goods—advertising rewards, etc. Similar to the offence of compounding a felony is that of taking a reward for the return of stolen property, and advertising a reward for the same purpose. These offences were formerly provided against by the statute, 7 & 8 Geo. 4, c. 29, ss. 58, 59 (E.),* and the 9 Geo. 4, c. 55, ss. 51, 52 (I.), which are repealed; and now by 24 & 25 Vict, c 96, s. 101, "whosoever shall corruptly take any money or reward, directly or indirectly, under pretence, or upon account of helping any person to any chattel, money, valuable security, or other property whatsoever, which shall by any felony or misdemeanor have been stolen, taken, obtained, extorted, embezzled, converted, or disposed of as in this act before mentioned, shall, unless he shall have used all due diligence to cause the offender to be brought to trial for the same, be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding seven years, and not less than three [now five] years, or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and, if a male under the age of eighteen years, with or without whipping." Upon an indictment under this statute, it is not necessary to show that the prisoner had any connection with the commission of the previous felony; it is sufficient if the evidence , satisfies the jury that the prisoner had some corrupt and improper design when he received the money, and did not bond fide intend to use such means as he could for the detection and punishment of the offender. R. v. King, 1 Cox, C. C. 36. Where A. was charged under
s. 58, with corruptly and feloniously receiving from B. money under pretence of helping B. to recover goods before then stolen from B., and with not causing the thieves to be apprehended, three questions were left for the jury: 1. Did A. mean to screen the guilty parties, or to share the money with them? 2. Did A. know the thieves, and intend to assist them in getting rid of the property by promising B. to buy it? 3. Did A. know the thieves, and assist B., as her agent, and at her request, in endeavoring to purchase the stolen property from them, not meaning to bring the thieves to justice? The jury answered the first two questions in the negative, and the third in the affirmative. It was held that the receipt of the money under the above circumstances was a corrupt receiving of the money by A. within the statute. R. v. Pascoe, 1 Den. C. C. R. 456; 18 L. J., M. C. 186.
*By s. 102, any person advertising a reward for the return r*^21 of property stolen or lost, and using any words purporting that no questions will be asked, or that a reward will be given for property stolen or lost without seizing or making any inquiry after the person producing such property, or promising to return to any pawnbroker or other person who may have bought or advanced money upon any property' stolen or lost, the money so paid or advanced, or any other sum of money or reward for the return of such property, or any person printing or publishing such advertisement, shall forfeit fifty pounds, to be recovered by action of debt.
*422] •CONCEALMENT OF DEEDS AND INCUMBRANCES. 4
By the 22 & 23 Vict c. 35, s. 24, " any seller or mortgagor of land or of any chattels, real or personal, or choses in action conveyed or assigned to a purchaser, or the solicitor or agent of any such seller or mortgagor who shall, after the passing of this act, conceal any settlement, deed, will, or other instrument material to the title, or any incumbrance, from the purchaser, or falsify any pedigree upon which the title does or may depend, in order to induce him to accept the title offered or produced to him, with intent in any of such cases, to defraud, shall be guilty of a misdemeanor, and, being found guilty, shall be liable, at the discretion of the court, to suffer such punishment by fine or imprisonment for any term not exceeding two years, with or without hard labor, or both, as the court shall award."
And by the 23 & 24 Vict. c. 38, s. 8, the above section is to be read as if the words " or mortgagee" had followed the word " purchaser" in every place where that word is introduced in the section.
By the Land Titles and Transfer of Land in England Act, 38 & 39 Vict. c. 87, s. 99, if in the course of any proceedings before the registrar or the court in pursuance of this act, any person concerned in such proceedings as principal or agent, with intent to conceal the title or claim of any person, or to substantiate a false claim, suppresses, attempts to suppress, or is privy to the suppression of any document or of any fact, the person so suppressing, attempting to suppress, or privy to suppression, shall be guilty of a misdemeanor, and upon conviction on indictment shall be liable to be imprisoned for a term not exceeding two years, with or without hard labor, or to be fined such sum, not exceeding five hundred pounds, as the court before which he is tried may award.
Preferring indictments for conspiracy ....... 423
Nature of the crime of conspiracy 423
Proof of the existence of conspiracy in general ..... 428
Proof of acts, etc., done by other conspirators 432
the means used , 433
Proof of the means used—cumulative instances ..... 434
object of the conspiracy * 435
Particulars of the conspiracy 436
Form of indictment 436
Venue . . . . ... • • 436
Conspiracy to murder persons, whether her Majesty's subjects or not 436
Preferring indictments for conspiracy. By the 22 & 23 Vict. c. 17, s. 1, no bill of indictment for conspiracy is to be presented to or found by any grand jury, except under the circumstances there mentioned. See ante, p. 192. See this statute in the Appendix. And see also 30 & 31 Vict. c. 35, 8. 1, in Appendix.
Nature of the crime of conspiracy. The earliest mention of the crime of conspiracy is to be found in the statute 33 Edw. I., entitled "Ordinatio de Conspiratoribus." It defines the offence thus: "Conspirators be they that do confeder and bind themselves by oath, covenant, or other alliance, that every of them shall aid and bear the other falsely and maliciously to indite or cause to indite or falsely to move or maintain pleas; and also such as cause children within age to appeal men of felony, whereby they are imprisoned and sore grieved; and such as retain men in the country with liveries or fees for to maintain their malicious enterprises, and this extendeth as well to the takers as to the givers; and stewards and bailiffs of great lords which by their seignory office or power undertake to bear or maintain quarrels, pleas or debates that concern other parties than such as touch the estates of their lords or themselves." This is called in the statute a "final definition of conspirators." In process of time the word came to have a wider interpretation (see, for the history of the change, Wright's "Law of Criminal Conspiracies and Agreements," 1—18). In modern books numerous definitions of conspiracy occur: see R. v. Vincent, 9 C. & P. 91, 38 E. C. L.; R. v. Seward, 1 A. & E. 706, 28 E. C. L.; R. v. Peck, 9 A. & E. 686, 36 E. C. L.; R. v. Jones, 4 B. & Ad. 345, 24 E. C. L; 3 Russ. Cri. 109, 5th ed.; R. v. Parnell, 14 Cox, C. C. 508; they all, in effect, amount to this, that a conspiracy is an agreement between two or more persons to do that which is unlawful.' "It consists not merely in the
1 1 Wheel. C. C. 149, 222; Commonwealth e. Hunt, 4 Mete 111; People v. Mather, 4 Wend. 229. All who accede to a conspiracy after.its formation are equally guilty with the original conspirators. Id. It may be between principal and clerk. Case