ts is
regarded (though all of them really are only varied descriptions of one
and the same offence) as containing the charge of a distinct offence.[4]
For precisely the same reason, several counts were, till recently,
allowed in CIVIL proceedings, although there was only one cause of
action; but this license got to be so much abused, (occasioning
expensive prolixity,) that only one count is now permitted for one cause
of action--a great discretion being allowed to judge, however, by
statute, of altering the count at the trial, so as to meet the evidence
then adduced. A similar alteration could not be allowed in criminal
cases, lest the grand jury should have found a bill for one offence, and
the defendant be put upon his trial for another. There appear, however,
insuperable objections to restricting one offence to a single count, in
respect of the other object, on peril of the perpetual defeat of
justice. The risk is sufficiently serious in civil cases, where the
proceedings are drawn so long beforehand, and with such ample time for
consideration as to the proper mode of stating the case, so as to be
sufficient in point of law. But criminal proceedings cannot possibly be
drawn with this deliberate preparation and accurate examination into the
real facts of the case beforehand; and if the only count
allowed--excessively difficult as it continually is to secure perfect
accuracy--should prove defective in point of law, the prisoner, though
guilty, must either escape scot-free, or become the subject of
reiterated and abortive prosecution--a gross scandal to the
administration of justice, and grave injury to the interests of society.
If these observations be read with attention, and borne in mind, they
will afford great assistance in forming a clear and correct judgment on
this remarkably interesting, and, _as regards the future administration
of justice_, vitally important case. There is yet one other remark
necessary to be made, and to be borne in mind by the lay reader.
Adverting to the definition already given of a "conspiracy"--that its
essence is the MERE AGREEMENT to do an illegal act--it will be plain,
that where such an agreement has once been shown to have been entered
into, it is totally immaterial whether the illegal act, or the illegal
acts, have been _actually done or not_ in pursuance of the conspiracy.
Where these illegal acts, however, have been done, and can be clearly
proved, it is usual--but not necessary-