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Report No. 69

VII. Position in U.S.A.

7.144. The position in the U.S.A. may be noted briefly.

In the federal law,1 a conspiracy is punishable only if it is to commit any offence against the United States, or to defraud the United States or any agency thereof, in any manner or for any purpose. Typical States enactments2 punished conspiracy to commit a crime or conspiracies to punish certain other specified acts, most of which are in the nature of fraud or preventing another person from doing any lawful act and the like.

The attribution of the statements made by the alleged conspirator to another conspirator is, in the U.S.A. dependent on the scope of the agreement. Such statements are attributable to the co-conspirators within the limits of the principle that each member is liable for the act of other members which are within the scope of the agreement among them, and only while that agreement is still operative.3

1. U.S. Code, Vol. 18, section 371.

2. See Note in (1955) 68 Harvard Law Review 1056.

3. Delhi Poli v. United States, (1957) 352 US 232 (237).

7.145. The Supreme Court of the U.S.A. had stated the rule as to evidence of such acts as follows:-1

"It is firmly established that where made in furtherance of the objectives of a going conspiracy, such statements are admissible as exceptions to the hearsay rule. This pre-requisite to admissibility, that hearsay statements by some conspirators to be admissible against others must be made in furtherance of the conspiracy charged, has been scrupulously observed by federal courts.".

1. Krulewitch v. United States, (1949) 336 US 440.

7.146. Criticism in U.S.A.-

It should be noted that there has been extensive criticism in the U.S.A. even of the limited rule permitting evidence of such statements of co-conspirators. In the leading U.S. case on the subject, is a trenchant criticism of the wide scope of the offence of conspiracy, as also of the special rules of evidence. Jackson J. observed in that case-

"The co-defendant in a conspiracy charge occupies an uneasy seat".

It has also been pointed out that while the basis for admitting in evidence the statements of a co-conspirator made in furtherance of the conspiracy is that there is a conspiracy-which would postulate the prior proof of the existence of conspiracy by independent evidence the rule permits statements of co-conspirators to be used for the purpose of proving the conspiracy itself. Thus, there is a movement n circle. Incidentally, we may observe that this criticism can apply to the Indian section also, because section 10 operates once there is "reasonable ground to believe that :wo or more persons have conspired together to commit an offence".

7.147. Judicial pronouncements spelling out the rationale of the rule in the J.S.A. emphasize the aspect of agency.1 "Having joined in an unlawful scheme, :laving constituted agents for its performance, until full fruition be secured, until he. does some act to disavow or defeat the purpose, he is in no situation to claim the delay of the law". "As the offence has not been terminated, or accomplished, he is still offending.".

It has been said:2 "And so long as the partnership in crime continues, the partners act for each other in carrying it forward." It is settled that an overt act of one partner may be the act of all without any new agreement specifically directed to that act.3 Motive or intent may be proved by the acts or declarations of some of the conspirators in furtherance of the common objective.4 A scheme to use the mails to defraud, which is joined in by more than one person, is a conspiracy, and all members are responsible, though only one did the mailing.5

1. Hyde v. United States, 225 US 347 (369).

2. Pinkerton v. United States, (1946) 90 L Ed 1489.

3. United States v. Kissell, 218 US 601 (608).

4. Wiborg v. United States, 163 US 632 (657-658).

5. Pinkerton v. United States, (1946) 90 L Ed 1489.

Indian Evidence Act, 1872 Back

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