It is urged that this conclusion leaves the prosecution's case without proof of the overt act necessary to complete the offence charged But we think the evid-but several overt acts in furtherence ample to show not only one, ance of the conspiracy. There is, e.g., testimony brought out partly by the defence, and uncontradicted, of the payment of considerable sums 6f money—of $5,600 to Mayer, who is charged as a coconspirator in both causes, to Roth of a draft for $5,000, to another of cheques aggregating $1,900, and of lesser sums to Russian officers, whose fare was also paid. It is also undisputed that the ship El Dorado carrying some 1,400 rifles and a considerable quantity of ammunition was brought from Korea, in an unseaworthy condition, into. Chinese waters in pursuance of the conspiracy. These are clearly overt acts and it is not essential that they be wholly independent' of the conspiracy itself.
Continuing his Honour said he failed to agree with defendant's counsel that the information charges "only one overt act" in alleging that "said defendant, on or about the aforesaid date, at the city of Hangchow, Republic of China, did agree, contract, covenant, bargain and trade with one Chang Tsai-wang and the agent and agents of said Chang Tsai-wang, for the sale and delivery to him of contraband articles of merchandise," etc.
This averment seems broad enough to admit evidence of a contract not only with the one first named but also of another with his agent and of still others with other agents. Nor does the term "agent" seem more than settled that only one overt act need be proved although others are alleged and, by analogy, the averment of agency would seem to be surplusage. If, in fact, a contract was actually made with others than the one named in the information it would seem to be covered by this averment even without a showing of agency.
Text read from the printed page and cleaned; old type leaves the occasional error.