The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-09-16

Jence agaish the others. Ifthen this i,lit1,h, n
ihou'd even imply that the fret charged wa
committed by more than one perfon, canno
conceive that .h- declarations of parffcfrt ryi
,aiaiJ would become admif'ihle on the ttia.of
'perfpn not prefent when thSy were made. I'm
ieis ihofc declarations form ,,art of The YER,
tranl-G,ion charged in the Indictment.
| ifin all this .houd be roiR ken, yet i, re-
r,ains to be proved that the offence charged rns,
not be committed by Jingle indiv;Gual Hi
may in fome rnesfute depend on the ex3ohtior
OF the terms Of the &c. and it is 10 be obj rived
that this expedition NUT be fixed. It cannot
vary with the Sa,ying afpeel OF the -proieculjun
at ITS different RACES. If, - has been Gid, a
military expedition is begun or !tt ON foo, when
iInpie folder is entitled for the p"rpoir. then
uniels 1t be begnn as well by the ioi,!irr who en.
Iiits as by the officer who en!iiis him A u ,&ry
expedition may be begun by Iingie individual.
90 II thoi- who engage in the eitsrp.Ee follow
their leader from thcir confidence in hin, with
Ont any knowledge of the real oaisGt, there is
no oonipiracy, and the criminal ACT is the act
OF IN individual. SO too, If tie means are any
ms $, the crime may unquefionably he coui-
o'tted by an individual. Should the term he
even 10 coHftrued as to imply that all the means
mutt be provided before ;he offence can be COM
mhted, t'll all the means may, in r:-Tny cafes,
4 be provided by foge individual. The rule
then laid down by the counfel for the profscu-
t!on' 'fcorrect in ititlf, would not comprehend
iAis cafe.
2d'y. There arc alto cafes in the books where
acts are IN tbejrnsture joint and where the law
attaches the guilt to ali concerned in their com
milton, 70 that the att of one is in truth ihc &
tof others, where the conduit of one perion in
the commlfiion of the fat contributes the crime
OF another perion: but this is diftinet from con-
fpiracy.
If many perfons combine TO &C nit muir
der, and all aflift nit, and are actually or con
'ruetiSely prefent, the aef OF one is the att of
all and is fufficient for the conviction of all. So
IN acts OF levying war, in the cafes of DaIHanr
ahd furchate, the acts of the mob were the
acts OF all in the mob whole conduct ikowed a
concurrence in ,hofe acts, and in the general de-
fign which the mob were carrying into executi.
on. But tbeie deciions turn on dift;r6t prin-
c'Pie from conipiracy. 'i'he crime is ioin'
crime, and a.lihoie who are preient aiding in
the COMMUNION of il participate in each othsrs
aciions, and in the guilt attached TO ,hofe ac.
tons.-Ihe conduct of each contributes TO i,ew
tue nature OF this joint crime; and declarations
made during the tranfa6tion are explanatory of
mat traniact'on; but cannot conceive that in
either cafe declarations unconnetied with he
trantaclion would have been evidence againit a.
ny other than the perfon who made them, or
PerionS IN whofeprefsnce they were made.
IT. for example, one of ieveral men who had u
hited IN committing a murder ihoud have faid,
-'hat ne with others contemplated the fact which
was afterwards committed, know Of no cafe
which wonld warrant the admifiion OF this tel
hnony upon the trial of perfon who was not
preient when the words were fpoken. So if
Damane had prcviouey declared that he had
entered into confederacy for the purpafe OF
no. n mil I
I,eve that this teftimony would have been adult.
hbie againit a perfon having no knowledge OF
the declaration and giving no afent to;t.
In felony the guilt of the principal attaches
to the acceiiary, and therefore the guilt ofthe
principal is proved on the trial Of the accefary
In treaion all are principals and the guilt of him
who has actually committed the treafon does in
England, attach 70 him who has advftd, aided
or AFFIXED that treafon. Confequently tie con
dHct of The perion who has Perpstraled the faQ
mutt be examine d on the trial of him who has
ad"iied or procured it. Bot in nidemeanors
by tatute, where the commifiion of PARTICULAR
tact contributes the only crime punifhed by the
law, believe there is no cafe where the de,
ciaratIon of ParticepJ erinsiuiJ can affect any
bus hmfrlf.
3tIy. The admiffion of the declaration. Of
Mr. BiannerhaHctt may be inEfed upoi un.
der the idea he was the agent of Col. B. il w
iaT the acts OF one man may affect another Grim.
Inally, is tuhjttt for diftna confederation, but
L believe there is no cafe, where the words Of
an agent can tie evidence againR his principal
on criminal proiecution. Could iuch teitimo.
ny be admtible, the agency NUT be irlt clearly
eitabliifed, not by The words cf the agent hut
by Inc acts of the principal and the word mufl
be within the power prevoufy l!1owu have been
given.
The opinions Of the circuit court of New
York in trials Of Smith and Ogden have been
frequently mentioned. Although have not the
honor to know the Judge who gave thnGe de
cihoas, / condeT til m as the determination Of
court Of The u. s. and G,a!l not be lightly
induced to diiregard them, or unneceTdrily 10
treat them with dlrcfpeGt. do not however
perceive in the opinions of Judge Talmadgc
any expreilion indicating that the declarations
OF third pcrions could be received az telimony
againf ANY individual who was profccuttG un.
der this act. II he has given that opinion, it
has certainly e!caped my notice and has not
been iuegeGed to me by council. He uuqueai-
onaoiY idys in psge lls of the trial ' thar the
reference which made to the doctrine of
ooniPracy did not apply in that cafe" The
reference ailOded to WAS the obleryation of Mr.
Emmett who had faid 90 that if the Object was
to charge col. Smith with the acts of can't Lew
IL, TREY ought to have laid the indictment for
Con!pracy." 1he opinion of the Judge that
the doctrine Of confpiracy had no application
to the cafe, appears TO me to be perfetlly ,cr-