State v. Stewart

59 Vt. 273

• Court: Supreme Court of Vermont
• Decided: May 15, 1887
• Status: Published

Opinion

The opinion of the court was delivered by

Powers, J.

Although authorities can be found that lay down the rule.that felonies and misdemeanors, or different felonies, cannot bo joined in the same indictment, still the rule in this and most of the states is otherwise.

It is always and everywhere permissible for the pleader to set forth the offense he seeks to prosecute in all the various ways necessary to meet the possible phases of evidence that may appear at the trial. If the counts cover the same transaction, though involving offenses of different grade, the court has it in its power to preserve all rights of defence intact. Commonwealth v. McLaughlin, 12 Cush. 612; State v. Lincoln, 49 N. H. 464; State v. Smalley, 50 Vt. 736; State v. Thornton, 56 Vt. 35; Rex v. Ferguson, 2 Stark. 489. Moreover, the motion to quash is addressed to the discretion of the court, and its refusal is not the subject of revision here. Commonwealth v. Fastman, 1 Cush. 189; Commonwealth v. Ryan, 9 Gray, 137; 1 Wharton Cr. Law, s. 519.

The respondents’ counsel argues that the first and second counts do not cover the offense of criminal, conspiracy at common law. But we think upon a careful examination of the English and American cases cited in argument, and we suspect that none have been overlooked on either side, that it is clear to a demonstration that a combination of the character set forth in these counts was a conspiracy at the common law; and, further, that the subject-matter of the offense being the same in this country as in England; namely, an interference with the property rights of third persons, and a restraint upon the lawful prosecution of their industries as well as an unlawful control over the free use and employment by workmen of their own personal skill and labor, at such times, for such prices, and for such persons as they please, the common law of England is ‘I applicable to our local situation and circumstances ” in this behalf, and is therefore the common law of Vermont.

In England and here, it is lawful, and it may bo added, commendable, for any body of men to associate themselves together for the purpose of bettering their condition in any respect, financial or social. The very genius of free institutions invites them to .higher levels and better fortunes. They may dictate their own wages, fraternize with their own associates, choose their own employers, and serve man and mammon according to the dictates of their own conscience.

But while the law accords this liberty to one, it accords a like liberty to every other one; and all are bound to so use and enjoy their own liberties and privileges as not to interfere with those of their neighbors.

All the legislation in England and America has been progressively in the direction of according to laborers the enjoyment of equal rights with others.

The early English statutes, beginning with the middle of the fourteenth century, are to be read in the light of the civilization of that day, and their provisions, to us of the nineteenth century, harsh, illiberal and tyrannical, were but the reflex of the prevalent notions of class distinctions, that shaped and guided the social and political polity of those days.

From time to time, however, down to 1875, this legislation has been liberalized and christianized; and to-day in England, as here, workmen stand upon the same broad level of equality before the law with all other vocations, professions, or callings whatsoever, respecting the disposition of their labor and the. advancement of their associated interests.

There, as here, it is unlawful for employers wrongfully to coerce, intimidate or hinder the free choice of workmen in the disposal of their-time and talents. There, as here, it is unlawful for workmen wrongfully to coerce, intimidate or hinder employers in the selection of such workmen as they choose to employ. There, as here, no employer can say to a workman he must not work for another employer, nor can a workman say to an employer he cannot employ the service of another workman.

By the law of the land, these respondents have the most unqualified right to work for whom they please, and at such prices as they please. By the law of the land, O’Rourke and Goodfellow have the same right. By the same law, the Rye-gate Granite Company'has the right to employ the respondents or O’Rourke on such terms as may bo mutually agreed upon, without-let, hinderance, or dictation from any man or body of men Avhatever.

Suppose the members of a Bar Association in Caledonia County should combine and declare that the respondents should employ no attorney, not a member of such association, to assist them in their defence in this case, under the penalty of being-dubbed a “ scab,” and having his name paraded in the public press as unworthy of recognition- among his brethren, and himself brought into hatred, envy and contempt, rvould the respondents look upon this as an innocent intermeddling with their rights under the laAV ? The proposition has only to be stated to disclose its utter inconsistency with every principle of justice that permeates the laAV under Avhieh Ave live.

If such conspiracies are to be tolerated as innocent, then every farmer in Vermont, now resting in the confidence that he may erpploy such assistance in carrying on his farm as he thinks he can afford to hire, is exposed to the operation of some secret code of Iuav, in the framing of Avhich he had no voice, and upon the terms of Avhich he lias" no veto, and every manufacturer is handicapped by a system that portends certain destruction to his industry'. If our agricultural and manufacturing industries are sleeping upon the fires of a volcano, liable to eruption at any moment, it is high time our people knew it. ■

But, happily, such is not the laAV, and among English-speaking people never has been the Iuav. The reports, English and American, are full of illustrations of the doctrine that a combination of tAvo or more persons to effect an illegal purpose, either by legal or illegal means, whether such purpose bo illegal at common laAV or by statute ; or to effect a legal purpose by illegal means, whether such means be illegal at common laAV or by statute, is- a common Iuav conspiracy. Such combinations ave equally illegal whether they promote objects or adopt means that are per se indictable ; or promote objects or adopt means that are per se oppressive, immoral or. wrongfully prejudicial to the rights of others.

If they seek to restrain trade, or tend to the destruction of the material prosperity of the country, they work injury to the whole public.

These propositions are the clear deduction of the' cases cited in argument, and breathe a spirit of equality and justice that must commend itself to every intelligent mind.

Counsel have cited to us no case in which it has been ruled that this crime of conspiracy does not exist at the common law. We are referred to Mr. Wright’s clover monograph upon Criminal Conspiracies, wherein the author, though not denying that conspiracies to injure industries and against the free exercise of one’s calling according to his own choice, were held to be criminal at the common law, still attempts to throw doubt upon the basis upon which the doctrine rests.

But when in 1 Hawkins’ Pleas of the Crown, c. 27, s. 2 (a book of great authority; 2 Russell on Crimes, 674), it is laid down “ that all conspiracies whatever, wrongfully to prejudice a third person, are highly criminal at common law ; ” and in 2 Wharton’s, Criminal Law, s. 2322, it is said that “ a combination is a conspiracy in law whenever the act to be done has a necessary tendency to prejudice the public, or oppreses individuals, by unjustly subjecting them to the power of the confederates, and giving effect to the purposes of the latter, whether of extortion or mischief;” and the same proposition, in one form of expression and another, is laid down in 2 Bishiop’s Criminal Law, s. 172; and in Desty’s Criminal Law, s. 11; and in 3 Chitty’s Criminal Law, 1138; and in Archbold’s Crim. Prac. & Pl. 1830; and it was said by DeNMAN, Ch. J., in Queen v. Kenrick, 5 Q. B. 49: “ It was contended, in the first place, that the third count was bad by reason of uncertainty, as giving no notice of the offense charged. The whole law of conspiracy, as it has been administered at least for the last hundred years, has been thus called in question; for we have sufficient proof that during that period any combination to prejudice another unlawfully has been considered as constituting the offense so called. The offense has been held to consist in the conspiracy, and not in the acts committed for carrying it into effect; and the charge has been held to be sufficiently made in general terms describing an unlawful conspiracy to effect a bad purpose; ” and Baron Rolfe, in Reg. v. Selsby, 5 Cox Crim. Cas. 495; and Tindal, Ch. J., in Reg. v. Harris, 1 Car. & Marsh. 661; and Crompton, J., in Hilton v. Eckersley, 6 E. & B. 47; and Grove, J., in Rex v. Mawbey, 6 T. R. 619; and Lord Mansfield, in Rex v. Eccles, 1 Leach Crown Cas. 274; and Hill, J., in Walsby v. Anley, 3 E. & E. 516; and Campbell, Ch. J., in Reg. v. Rowlands, 17 Adolp. & El. 670; and Baron Bramwell, in Reg. v. Druitt, 10 Cox Crim. Cas. 592; and Brett, J., in Reg. v. Bunn, 12 Cox Crim. Cas. 316; and Malins, V. C., in Springhead Co. v. Riley, L. R. 6 Eq. 551; and Coleridge, Ch. J., in Mogul S. S. Co. v. McGregor, L. R. 15 Q. B. Div. 476; and Shaw, Ch. J., in Commonwealth v. Hunt, 4 Met. 111, 128; and Caton, Ch. J., in Smith v. The People, 25 Ill. 17; and Gibson, Ch. J., in Commonwealth v. Carlisle, Journal Jurisprudence, 225; and Chapman, Ch. J., in Carew v. Rutherford, 106 Mass. 1,—have all added their endorsement of the doctrine advanced as early as the work of Hawkins, supra; and it is manifest that Ave are compelled to forsake the literature of doubt, and to cleave unto that of authority. See also Rex v. Ferguson, 2 Starkie, N. P. 489; Rex v. Bykerdike, 1 M. & Rob. 179; People v. Fisher, 14 Wend. 9; State v. Donaldson, 3 Vroom, 32 (N. J. L.) 151; Snow v. Wheeler, 113 Mass. 186; State v. Noyes, 25 Vt. 415; State v. Burnham, 15 N. H. 396; Morris Run Coal Co. v. Barclay Coal Co. 68 Penn. St. 173.

Vice-Chancellor Malins, in the case cited supra, states the law of the subject in brief but intelligible words : “ Every man is at liberty to enter into a combination to keep up the price of wages; but if he enters into a combination for the object-of interfering with the perfect freedom of action of another man, it is an offense, not only at common law, but under Act 6, Geo. 4, c. 129.”

The principle upon which the cases, English and American, proceed, is, that every man has the right to employ his talents, industry and capital as he pleases, free from the dictation of others; and if two or more persons combine to coerce his choice in this behalf, it is a criminal conspiracy. The labor and skill of the workman, bo it of high or low degree, the plant of the manufacturer, the equipment of the farmer, the investments of commerce, are all in equal sense property. If men by overt acts of violence destroy either, they are guilty of crime. The anathemas of a secret organization of men combined for the purpose of controlling the industry of others by a species of intimidation that works upon the mind rather than the body, are quite as dangerous, and generally altogether more effective, than acts of actual violence. And while such conspiracies may give to the individual directly affected by them a private right of action for damages, they at the same time lay a basis for an indictment on the ground that the State itself is directly concerned in the promotion of all legitimate industries and the development of all its resources, and owes the duty of protection to its citizens engaged in the exercise of their callings. The good order, peace and general prosperity of the State are directly involved in the question.

In the case at bar, the third and fourth counts set forth more particularly the methods adopted by the respondents to interfere with the prosecution of its business by. the Ryegate Granite Works. They charge the respondents with an intent to prevent the prosecution of the work of that company by threatening O’Rourke, Goodfellow and others, that the Ryegate Granite Works wore ‘ ‘ scab shops ” and all workmen therein were “ scabs,” and their names would be published in the “ scab” list in the Granite Cutters’ Journal, and that they would be shunned and not allowed to work with other granite cutters, and would bo disgraced in tbe craft, etc. ; by all which O’Rourke, Goodfellow and others were frightened and driven away from said shops.

The exposure of a legitimate business to the control of an association that can 'order away its employees and frighten away others that it may seek to employ, and thus be compelled to cease the further prosecution of its work, is a condition of things utterly at war with every principle of justice, and with every safeguard of protection that citizens under our system of government are entitled to enjoy. The direct tendency of such intimidation is to establish over labor and over all industries, a control that is unknown to the law, and that is exerted by a secret^ association of conspirators, that is actuated solely by personal considerations, and whose plans, carried into execution, usually result in violence and the destruction of property.

That evils exist in the relations of capital and labor, and that workmen have grievances that oftentimes call for relief, are facts that observing; men cannot deny. With such questions we, as a court, have no function to discharge further than to say that the remedy cannot be found in the boycott.

But it is objected that the first and second counts are defective in form.

In the first count the pleader charges an unlawful combination, conspiracy, confederacy and agreement to prevent, hinder and deter, by violence, threats and intimidation, the Ryegate Granite Works from retaining and taking into its employ O’Rourke, Goodfellow and others.

In the second count, after stating a malicious intent to control, injure, terrify and impoverish the Granite Company, he charges an unlawful conspiracy, combination, confederacy and agreement to terrify, frighten, alarm, intimidate and drive aivay, by threats and intimidation, O’Rourke, etc., who were then and there workmen and laborers of the Granite Works.

Both counts charge an unlawful conspiracy; and both set forth the means by which the conspiracy is to be carried into effect. The unlawful conspiracy is enough without the statement of the means to show an offense at the common law. A conspiracy to hinder, prevent and deter a man from retaining and taking into his employ an attorney to defend his canse is a clear violation of his as well as the attorney’s personal rights; and equally so is a combination to terrify, alarm and drive away his attorney already employed. The natural tendency and inevitable consequence of such combinations is to restrain the prosecution of legitimate callings and industries, and thereby injure the public as well as individuals. The coercive intent, emphasized and expanded by the aggregation of numbers, and amounting to a show of force, gives to such combination its character of illegality.

If in fact the respondents had prevented, hindered and deterred the Granite Works from employing O’Rourke, the act would confessedly have been criminal. It logically follows that a conspiracy to do this thing would be equally so.

It is not necessary to aver that the Granite Works desired or intended to employ O’Rourke. An allegation that it was in fact prevented from employing him ex vi termini implies a purpose to employ him which has been met and thwaited. So an allegation that the respondents conspired to hinder and prevent such employment imports an intent to interfere with the execution of a purpose already resolved upon. But-the pleader has supplemented the charge of unlawful conspiracy by an allegation of the means by which it is to be accomplished; namely, by violence, threats and intimidation. Our statute, ss. 4226, 4227, R. L., has prescribed a punishment for using-threats or intimidation to prevent a person from accepting- or continuing an employment in a mill, etc.

These counts then charge a conspiracy to do an act unlawful at common law, by means unlawful under the statute.

In such case, it is not necessary to set out specifically the kind of threats or methods of intimidation made use of. The words of the statute may be used without setting forth their meaning. Thus in Regina v. Rowlands, 17 Adol. & El. N. S. 671, the indictment among other things charged a conspiracy to force workmen to quit the employment of the Messrs. Perry by using threats and intimidation. The statute, 6 Geo. 4, c. 129, s. 3, forbids the use of such means. The court said : “It is objected that some counts do not disclose the nature of the molestation or intimidation by which the conspiracy was to take effect; but this is quite unnecessary. The words of the legislature are used; the terms in question have a meaning-stamped upon them by the Act, 6 Geo. 4, c. 129, s. 3, and we must take it that they are used here in that sense. .And they are not employed as describing the substantive offense for which the indictment is preferred; that offense consists in the conspiracy, which is a misdemeanor at common law.”

In Commonwealth v. Dyer, 128 Mass. 70, under a statute similar to ours, a like decision was made; and such is the general rule in criminal pleading, even when the statutory terms create the offense. 1 Wharton, Crim. Law, s. 364; State v. Cook, 38 Vt. 437.

Here the conspiracy is the complete criminal act. It was wholly unnecessary to aver the means by which the conspiracy was to be carried out. State v. Noyes, 25 Vt. 415, 422. Herein lies the distinction between this case and Commonwealth v. Hunt, 4 Met. 111, relied upon by the respondents. In that case the substantive offense was a conspiracy, but not to do an unlawful act; and the means laid for its accomplishment were laid as mere matters of aggravation; so no crime whatever was charged in the indictment.

If the means to be used are not necessarily unlawful, either by statute or the common law, and are laid as the corpus delicti, then the rule contended for by the respondents applies ; and a particular statement of the means to be used must be set out, so that the court can see on the face of the indictment that a crime has been committed. In State v. Keach, 40 Vt. 113, this court laid down the rule as follows : ‘ ‘ The adjudged cases uniformly recognize the rule that a general allegation that two or more persons conspire to effect an object criminal in itself, as to commit a misdemeanor or felony, is sufficient, even though the indictment omits all charges of the particular means to be used; and the cases are now equally uniform in holding that if the agreement or combination be to do an act or to effect an object not criminal, by the use of unlawful means, a general charge of a conspiracy to effect the object is not sufficient; and the charge of such a , conspiracy must be accompanied with a particular statement of the means by which the object of the conspiracy was to be effected, so that those means may appear to be criminal, or the indictment will be bad.”

These counts are drawn in accordance with approved precedents,—2 Wharton’s Prac. 657, 666; Bishop’s Forms, ss. 303, 304,—and are, we think, sufficient without the supplementary averment of the means to be used; and a fortiori a count charging a conspiracy to do an unlawful act by unlawful means must be held sufficient.

Much that has already been said applies to the third and fourth counts.

We think they sufficiently set out an offense under s. 4227, R. L. The language of the statute is adopted, all the elements of the offense clearly enumerated, and the whole charged to have been done with the intent specified. This is sufficient. Commonwealth v. Dyer, supra; Reg. v. Rowlands, supra; State v. Jones, 33 Vt. 443; State v. Cook, 38 Vt. 437; 1 Wharton, Crim. Law, s. 364.

It was unnecessary to aver knowledge in the respondents of the wrongful character of the matters and things charged against them. If an act in its natural characteristics and quality is unlawful, knowledge of its wrongful character is presumed. It is otherwise when it becomes wrongful by the presence of accidental or fortuitous features not ordinarily attendant upon it. Thus in State v. Carpenter, 54 Vt. 551, cited by respondents, the respondent was presumed to know that it was unlawful to assault Larose as an individual. So for such assault no averment was necessary to bring home to him knowledge of the wrongful quality of his act. But when the same act was enlarged to the grade of an offense for impeding Larose as a public officer, it took on a character so abnormal that knowledge of this artificial quality of his act in the respondent must be alleged in order to lay a basis for a guilty intent.

We do not deem it necessary to extend this discussion— already too long drawn out — in following seriatim the numerous objections taken in the able and -elaborate brief of the' respondents to the different counts of this indictment. The general scope of the views expressed covei’s the whole ground, we think; and the result is, the judgment of the County Court overruling the motion to quash and overruling the demurrer, and adjudging the indictment to be sufficient, is affirmed; and the cause is remanded, to be further proceeded with.