Opinion
November Term, 1872.
Bates, Deputy Attorney General. When the agreement between the parties to do the alleged unlawful act is proved, the conspiracy is proved without any further evidence. 2 Archb. 1045. 3 Greenl. Ev. Secs. 91, 97. 2 Mass. 329. 2 Mass. 536. 6 Mass. 74. 4 Wend. 229. Cro. Car. 380. Whiteley, for the defendant. The testimony, such as it is, is insufficient to convict Aiken; but the testimony of both of the witnesses for the prosecution being accomplices by their own admissions in the alleged conspiracy, and which is uncorroborated by any other witness, is entirely unreliable and unworthy of belief. 2 Amer. Crim. Law, Sec. 2339. When, however, the charge in the indictment against two persons is that they conspired with each other, and also with others unknown and not named, it must be proved as alleged, either that they alone conspired together, or that both of them with others unknown conspired to commit the act, because without such proof under such an indictment, one cannot be convicted, and the other acquitted, since it takes two at least to make a conspiracy. 3 Greenl. Ev. Sec. 97. 2 Archb. 1045, 1055. 4 E. L. E. R. 287.
Lore, Attorney General, replied.
James Adams and John Aiken were indicted and tried at this term of the Court for a conspiracy to break and enter the National Bank of Newark with the intent to rob it. The indictment contained five counts, each of which charged that they conspired together, and with divers other evil disposed persons whose names were unknown to the grand jury, to commit the crime alleged in it; and the conspiracy as alleged was proved by the testimony of two witnesses who fully admitted and stated that they were accomplices in it, and why they ultimately failed to accomplish their purpose of breaking and entering the bank with the intent alleged in the indictment.
that the offense charged in the indictment consisted in the conspiracy or combination to do the unlawful act alleged in it, and the gist of that offense consisted in their agreement to commit the act, and it was complete as a conspiracy, and indictable as such, without the doing of any overt act whatever in the execution of the agreement, or the design with which it was entered into. But it was not true as contended for by the counsel for Aiken, that under the indictment and proof, one of the defendants could not be convicted or acquitted without the other, for if the jury should be satisfied beyond a reasonable doubt that either of them conspired with the witnesses, Greenwalt and Miller, or either of them, to commit the act, he might be convicted, and the other might be acquitted.
Verdict — Adams guilty. Aiken not guilty.