Page:Federal Reporter, 1st Series, Volume 2.djvu/764

 UNITED STATES V. SAOIA. ���787 ���United States, and fraudulently, and by false testimony, pre- venting the said will from being proved before the ordinary, and thereby preventing the said bequest from taking effect and being applied to the use of the United States in man- ner aforesaid. �The jury is thus brought to the consideration of three ques- tions, and the court suggests that when you retire to deliberate upon your verdict you shouldconsider them separately, in the order stated : (1) Has the government proved the existence of such a conspiracy as is described in the indictment ? (2) Were any of the alleged acts performed by one or more of the parties to give effect to the fraud ? (3) If such a con- spiracy existed were any of the defendants members of it ? �1. Has a conspiracy to defraud the United States been entered into? �The general definition of a conspiracy is an agreement or combination between two or more persons to effect an unlawf ul purpose. �The statutory offence, under the laws of the United States, is not complete, however, until an act is done by some of the parties to carry into execution the fraud. �The agreement or combination is the offence, but the per- formance of the alleged act to effectuate it is necessary to make it indictable in this court; and such an offence is rarely provable by direct testimony. AU the text books agree that the evidence in proof of the conspiracy may be, and from the nature of the case generally must be, circumstantial. Ail concerted action to violate the law or to commit a fraud is secret, and is ordinarily shown by separate independent acts, tending to exhibit a common design. The common design is the essence of the charge, and to prove it it is not necessary to prove that the parties came together and actually agreed in terms to bave that design, and to pur sue it by common means. �The jury will be justified in inferring the existence of a conspiracy when the government satisfies you beyond a rea- sonable doubt, by the testimony of credible witnesses, that any two or more of the parties charged aimed, by their acts, ����