Dominus R v Kinnersley and Moore
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1795 |
| Date | 01 January 1795 |
| Court | Court of the King's Bench |
English Reports Citation: 93 E.R. 467
COURTS OF CHANCERY, KING'S BENCH, COMMON PLEAS AND EXCHEQUER
See Allen v. Flood [1898], A. C. 88.
[193] dominus rex tiers. kinnersley and moore. [See Allen v. Flood [1898], A. C. 88.] Conspiracy may be laid without any overt act, and if one be convicted, judgment shall be given against him before the trial of the other. Information, setting forth, that the defendants Kinnersley and Moore, being evil disposed persons, in order to extort money from my Lord Sunderland, did conspire together to charge, my lord with endeavouring to commit sodomy with the said Moore ; and that in execution of this conspiracy they did in the presence and hearing of several persons falsely and maliciously accuse my lord, that he conatus fuit rem veneream habere with the defendant Moore, and so to commit sodomy. The defendant Kinnetsley only appears, and pleads to issue, and is found guilty, and now several exceptions were taken in arrest of judgment. Branthwayte Serjeant. The nature of the offence must appear upon the record, for by that only the Court must judge, and the offence must be particularly and certainly alleged. Conatus fuit is incertain, for it might only be an act of the mind, which before it was put execution was suppressed by reason. 1 Roll. Rep. 79. 2 Bulst. 276. In an action for words, per quod maritagium amisit, the plaintiff declared, that whereas he intendebat et conatus fuit to marry such a woman, the 468 TRINITY TEEM, 5 GEO. 1STBAHOE. 194. plaintiff spoke of him such words, per quod, &c. and this was held to be incertain, and the judgment was arrested. 2. It should appear upon the record, that the party accused is innocent; for it is no crime to charge a guilty person with such an offence. They should have averred, ubi revera et in facto he non conatus fuib to do the act with which he was charged. Hut. 11, 49. In actions for a malicious prosecution the plaintiff must shew the former action to be determined, and how; so likewise he must shew an acquittal upon an indictment (a). 1 Keb. 881. 3. To every conspiracy there must be two persons at least, whereas here is only one brought in and found guilty. If hereafter the other should be found not guilty, that will consequently be an acquittal of Kinnersley. If three be indicted for a riot and an assault, and one only found guilty, and the others acquitted ò this discharges them all, because the riot is the foundation, and the assault only the consequence. Salk. 593. And one person alone cannot be guilty of committing a riot: so in this case one cannot be guilty of the conspiracy, though he may of the overt act, and yet the foundation (which is the conspiracy) being removed, the other part, which is only the consequence, falls of course. [194] Gomyns. Bare words are not a sufficient overt...
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