Vanderbilt Law Review

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Conspiracy--Cline v. State was an appeal from a conviction of a conspiracy to dynamite and destroy a public school building in Clinton, Tennessee, in violation of a statute making it a felony for two or more persons to agree "to commit an illegal act capable of producing conditions destructive to life or property.. ." by possessing, transporting or using explosives. Three men, D1, D2 and D3, had been indicated; but, before defendants were put to trial, the state entered a "nolle prosequi" against D1, who became a state's witness. Afterwards, D2 was acquitted in the same trial in which D3, the appellant here, was convicted. Reversal was sought on the basis of precedent holding that, it being essential to criminal conspiracy that two or more persons combine to do an illegal thing, "when only two are charged with a conspiracy, and one of them is acquitted, the conviction of the other is void." The court conceded that on authority if both D1 and D2 had been acquitted the case against D3 as a joint conspirator would have failed. But it distinguished precedent on the ground that here only D2, and not D1 as well, had been acquitted and--adopting the rule that "so long as the acquittal or death of co- conspirators does not remove the basis for a charge of conspiracy, a single defendant may be prosecuted and convicted of the offense. . . ."--found no error in this regard concerning D3's conviction.