
    * Commonwealth versus Amos Warren and Clark Johnson.
    Of the evidence necessary to support an indictment for a conspiracy. [The gist of the offence is a conspiracy to cheat; and if that be shown, it is not necessary to show any act done in consequence of it — Ed.]
    The defendants were indicted, at the last April term at Ipswich, for a conspiracy to cheat one Moses Putnam of a large quantity of shoes; and the indictment charged that, in pursuance of the conspiracy, they falsely affirmed that the defendant Warren’s name was William Lane; that he lived at Gloucester, and carried on the business of making shoes; that, through disappointment, he had not b} him the number of shoes he then wanted for a shipment to the Havanna, and was desirous of purchasing on- his own credit a quantity from Putnam; that Putnam, trusting to their false and fraudulent affirmations, sold and delivered to them a quantity of shoes, taking Warren’s notes for security, which he signed with the assumed name of William Lane.
    
    The defendants pleaded not guilty, and, upon trial before Sewall, J., were found guilty, subject to the opinion of the Court upon evidence as reported by the judge; they moving for a new trial, on the ground that the verdict, as against Johnson, was against' evidence; and if he ought to be acquitted, that Warren ought to have been acquitted, as one person alone cannot be guilty of a conspiracy.
    It was proved, at the trial, that the defendants went together in a chaise to Putnam’s; that Warren went into the shop, leaving Johnson in the chaise; that in Johnson’s absence Warren made the false affirmations, and obtained a delivery of a parcel of shoes; that Warren told Putnam that Johnson was a man who lived with him; that Johnson then came into the shop, which was small, and was there when Warren made and signed the notes by the name of William Lane; but the witness could not testify that Johnson knew the tenor of the notes; that Warren went the next day to Putnam’s shop without Johnson, and under the same feigned name fraudulently purchased two hundred pair of shoes more ; that i * 75 ] Johnson had one * hundred pair of the shoes, that were thus sold by Putnam to Warren, and by the name of William Smith sold them to one Chase.
    
    The motion for a new trial was shortly argued by Story for the defendants, and Bidiuell, attorney-general, for the government.
   Parsons, C. J.

The- gist of the offence is the conspiracy to cheat Putnam, of his shoes, and the defendants might lawfully have been convicted, if the jury were satisfied, on legal evidence, that they were guilty of the confederacy charged, although no act done in pursuance of it had been proved.

But Warren’s intent to defraud Putnam is not denied, and the question is, whether the jury could lawfully infer that Johnson was an associate and confederate in the same fraudulent design. — He went with Warren; he was with him in the shop- when he received the shoes, and when he gave the fictitious securities. If Johnson gave no evidence to explain his connection with- Warren, whence the jury might infer that it was innocent, they might infer that- he was privy to Warren’s want of credit, and that he had obtained the shoes fraudulently. — If the evidence had rested here, the jury might have pressed it too far ; but when it was proved that he received a hundred pair of shoes, and sold them under a fictitious name, the jury might well infer that, as he had his share in the plunder, he was an associate in the villany by which it was obtained.— We cannot therefore say, that the verdict as to Johnson is against evidence; but the presumption against him is so strong, that the jury were well warranted to infer his guilt in the conspiracy charged.

Judgment must be entered on the verdict. 
      
      
        Commonwealth vs. Judd & Al., 2 Mass. Rep. 329.
     