Mr. Ingersoll. That would seem to be stealing the foundation of this case. [Laughter, and cries of "Silence" from the bailiffs.] We will consider the argument made to the Court, and not to the jury.
The next question, then, is what is the corpus delicti; that is, in a case of conspiracy? I do not believe the combination to be the corpus delicti—the mere association. It may be the corpus, but it is not the delicti, and under the law there must not only be a conspiracy, as I understand it, but also an overt act done by one of the conspirators to accomplish the object of the conspiracy. So that the conspiracy with the fraudulent purpose and the overt act constitute the corpus delicti. Now, I read from Best on Presumptions, page 279:
"The corpus delicti, the body of an offence, is the fact of its actually having been committed."
The dead body in a murder case is not the corpus delicti. It is the corpse and nothing more. It must be followed by evidence that murder was committed.
"The corpus delicti is the body, substance or foundation of the offence. It is the substantial and fundamental fact of its having been committed."
1 Haggard, 105, opinion by Lord Stowell.
I now refer you to Peoples vs. Powell, 63, N. Y., page 92. It seems that the defendants in this case were commissioners of charities of the county of Kings, and they were indicted for conspiring together to buy supplies contrary to law and without duly advertising. Their defence was that they were not aware that such a law existed; that they were ignorant of the law. The court below thought that made no difference. The court above said before they could be guilty of this crime there must be the intention to commit the crime, and this language is used:
"The agreement must have been entered into with an evil purpose, as distinguished from a purpose simply to do the act prohibited in ignorance of the prohibition. This is implied in the meaning of the word conspiracy. Mere concert is not conspiracy."
So combination is not conspiracy; partnership is not conspiracy; neither is it the corpus delicti of conspiracy. There must be the evil intent; there must be the wicked conspiracy not only, but there must be one at least overt act done in pursuance of it before the corpus delicti can be established.
"The actual criminal intention belongs to the definition of the offence and must be shown to justify a conviction for conspiracy. The offence originally consisted in a combination to convict an innocent person by perversion of the law. It has since been greatly extended, but I am of opinion that proof that the defendants agreed to do an act prohibited by statute, followed by overt acts in furtherance of the agreed purpose, did not conclusively establish that they were guilty of the crime of conspiracy."