The acts and declarations of one conspirator, made in the absence of the others, in furtherance of the common design, are in ordinary cases only admissible after a prima facie case of conspiracy has been made out by competent evidence.' The admission in evidence of statements of alleged co-conspirators, made in the absence of the defendant, before the existence of the conspiracy has been established, is within the discretion of the trial judge. Declarations of co-conspirators, made in the absence of defendant, are admissible against him when made in furtherance of the conspiracy, but not when made in a casual conversation with neighbors, and not in furtherance of the conspiracy, although relating to the subject-matter thereof.' Yet when several men form the intent and come together and agree to carry it into execution, this agreement is a step in the direction of accomplishing the purpose, and it is a crime.' And if it be proved that the defendants pursued by their acts the same object, often using the same means, one performing one part, and another another part of the same object, the jury will be justified in concluding they were engaged in a conspiracy to effect the same object.* The rule requiring a conspiracy to be first established cannot well be enforced where the proof of the conspiracy depends upon a vast amount of circumstantial evidence, a vast amount of isolated and independent facts; and in any case, where such acts and declarations are introduced in evidence, and the entire proof, taken together, shows that such conspiracy actually exists—it will be considered immaterial whether the conspiracy was established before or after the introduction of the acts and declarations of the several persons charged.' The prosecutor may either prove the conspiracy which renders. the acts of the conspirators admissible in evidence, or he may prove the acts of the different persons, and thus prove the conspiracy. 'Moore v. Shields, 121 Ind. 267. the absence of the other. State v. McGee, 81 Iowa, 17. So the threats of one conspirator made in Slade v. State, 29 Tex. App. 381. State v. Glidden, 3 New Eng. Rep. 849, 55 Conn. 46. "The Mussel Slough Case, 5 Fed. Rep. 680. 'State v. Winner, 17 Kan. 298; Spies v. People, 10 West. Rep. 701, 122 Ill. 1. "Roscoe, Crim. Ev. (7th ed.) p. 415. As between conspirators, antecedent acts and declarations of each, pending and in pursuance of the common design, and tending to throw light upon its execution or upon the motive or intent of its perpetrators, are competent evidence against each and all of them.' When a conspiracy has been proved sayings and movements of defendant's co-conspirators before the perpetration of the crime are admissible against the defendant, although occurring in his absence.' But when the common design has been consummated nothing said or done by one can affect the other.' Where a conspiracy arises out of a concert of action and without any previous agreement as to its purpose or extent, the responsibility of any one of the conspirators ceases when he withdraws his aid and encouragement or countenance from the enterprise, but his mere absence from the scene of the unlawful act will not exonerate him when he lends his aid and encouragement to the acts and the purpose for which they are committed." So long as the conspiracy continues, the act or declaration of one, though in the absence of the other, is evidence against the latter. The record of the acquittal of one is admissible on trial of others charged with him with conspiracy." Where an unlawful plot to advance the price of lard is entered into, one of the parties thereto cannot be aided by the court to an accounting against another party to the contract, even if the latter is only an agent of the former, where there has been no 1Clark v. State, 28 Tex. App. 189; Thomas v. State, 1 West. Rep. 309, 103 Ind. 432; Walton v. State, 88 Ind. 9; Daniels v. McGinnis, 97 Ind. 549; Harding v. State, 54 Ind. 359; Williams v. State, 81 Ala. 1; Brown v. Herr, 21 Neb. 113; State v. Glidden, 3 New Eng. Rep. 849, 55 Conn. 46; Tucker v. Finch, 66 Wis. 17; Owens v. State, 16 Lea, 1; Campbell v. Com. 84 Pa. 187; State v. McCahill, 72 Iowa, 111; Card v. State, 7 West. Rep. 81, 109 Ind. 415; Rex v. Hammond, 2 Esp. 719; People v. Mather, 4 Wend. 261; United States v. Cole, 5 McLane, 601; Reg. v. Most, L. R. 7 Q. B. Div. 244. Clark v. State, 28 Tex. App. 189. Owens v. State, 16 Lea, 1; Johnson v. State, 48 Ga. 116; Willey v. State, Tex. 85 U. S. 570. 4State v. McCahill, 72 Iowa, 111. Scott v. State, 30 Ala. 503, 509, 510; O'Neal v. State, 14 Tex, App. 582. accounting or admission of indebtedness or promise to pay since the completion of the illegal scheme.' In a suit to recover damages for a loss occasioned by a conspiracy to injure plaintiff's business by driving away customers, declarations of customers as to why they withdrew their custom, made at the time of withdrawing, are admissible as part of the res gesta.1 Trespass on the case may be maintained for conspiracy to defame and thereby injure one in his business, when, in pursuance of the combination, means have been employed which tended to accomplish the object of the conspirators." In an action against two or more in case, in the nature of a conspiracy, if the tort be actionable, whether committed by one or more, recovery may be had against but one, otherwise proof of the conspiracy is essential.* But conspiracy is not the subject of a civil action until a third person has suffered a damage from something done under it. Then and not before, he may sue; and the wrong inflicted, not the combination to do it, is the real foundation of the action.' In an action for damages resulting from a conspiracy to defraud the plaintiff, it is not necessary to a recovery that there should be actual evidence that the defendants conspired together, if there is proof that by their wrongful acts they have injured the plain tiff." 'Leonard v. Poole, 4 L. R. A. 728, 114 N. Y. 371; Bartlett v. Smith, 13 Fed. Rep. 263; Cobb v. Prell, 15 Fed. Rep. 774; Irwin v. Williar, 110 U. S. 499, 28 L. ed. 225. *Moores v. Bricklayers Union No. 1 (Super. Ct. Cin.) 7 Ry. & Corp. L. J. 108. *Wildee v. McKee, 1 Cent. Rep. 919, 111 Pa. 335. Rundell v. Kalbfus, 125 Pa. 123. 'Savile v. Roberts, 1 Ld. Raym. 374, 378; Hutchins v. Hutchins, 7 Hill, 104, 108; Herron v. Nichols, 25 Cal. 555. *Booker v. Puyear, 27 Neb. 346. APPENDIX. A. My friend, Alfred B. Shepperson, the editor and publisher of "Cotton Facts," who is recognized as the most thoroughly advised man as to the production and profitable handling of cotton in all the markets of the world, has kindly responded to my request for views from the cotton brokers' standpoint, regarding "Futures" in cotton; the same force necessarily controlling "Futures" in grain and other farm products. Although the letter is too late for an earlier insertion, it is far too valuable to be lost to my readers; and I insert it here, sure that they will appreciate the force of the learned writer's presentation of the debated question. HON. CHARLES A. RAY, 40 Wall St., New York. My Dear Sir: 87 COTTON EXCHANGE, NEW YORK, Feb. 4, 1892. At present a large business is done in buying and selling for future delivery, cotton, wheat, corn, oats, pork, bacon, lard, coffee, and the manufactured products of cotton and flour mills. These transactions are designated as "Cotton Futures,' "Wheat Futures," "Coffee Futures," etc., to distinguish them from transactions for the immediate or prompt delivery of those commodities. The transactions in "futures," for their own account and for account of their customers, are made by members of regularly incorporated commercial exchanges at New York, Chicago, New Orleans, Liverpool, Havre, etc. Each exchange has rules for the regulation of the business in "futures" based upon commercial law and equity, and every transaction made is subject to these rules. Actual delivery by the seller and actual receipt by the buyer is contemplated of every contract for future delivery which is entered into. The rules of the exchanges im |