134 Mo. App. 517 | Mo. Ct. App. | 1908
It seems to be conceded that the offense charged in the indictment does not fall within the terms of our statute with respect to the offense of conspiracy. It is obvious the court, in quashing the indictment, proceeded upon the theory that the entire law of this State on the subject of criminal conspiracy is contained in our statutes, secs. 2152 and 2153, R. S. 1899 (secs. 2152 and 2153, Mo. Ann. St. 1906). These provisions are as follows:
“Sec. 2152. Conspiracy. — If two or more persons shall agree, conspire, combine or confederate: First, to commit any offense; or second, falsely or maliciously to indict another for any offense, or procure another to be charged or arrested for any offense; or third, falsely or maliciously to move or maintain any suit, or, fourth, to cheat and defraud any person of any money or property, by means which are in themselves criminal; or, fifth, to cheat and defraud any person of any money or property by any means which, if executed, would amount to a cheat, or to obtaining money or property by false pretenses; or, sixth, to commit any act injurious to the public health or public morals, or for the perversion or obstruction of justice, or the due administration of the laws — they shall be deemed guilty of a misdemeanor.
• Sec. 2153. What shall constitute conspiracy in certain cases. — No agreement, except to commit a felony upon the person of another, or to commit arson or burglary, shall be deemed a conspiracy, unless some act besides such agreement be done to effect the object*525 thereof, by one or more of the parties to such agreement.”
It is insisted, however, that these statutes are not exclusive of other conspiracies cognizable at common law. It. is said the common law on conspiracy obtains in this State identically as before the statutes mentioned, except in so far as it is modified by their provisions, and that the indictment sufficiently charges an offense at common law. Unless it be in respect of laws of a general nature, local "to the kingdom of England, our statute, sec. 4151, R. S. 1899, sec. 4151, Mo. Ann. St. 1906, provides that the common law and the statutes of England made prior to the fourth year of the reign of James the First, which are not repugnant to our institutions or inconsistent with our Constitution and written laws, are of force and effect in this State. By virtue of these provisions, the common law of England concerning the offense of conspiracy was in force in this jurisdiction long prior to our statute, supra, declaring certain combinations and means employed in furtherance thereof sufficient to constitute a criminal conspiracy. As we shall presently notice, there were numerous combinations to accomplish a purpose by unlawful means, and to accomplish an unlawful purpose by means not unlawful, constituting the offense of conspiracy at common law which are not included in our statute on the subject. And there can be no doubt that the offense charged in the indictment under consideration amounts to a conspiracy under that system of jurisprudence. It therefore appears that unless the common law touching the matter is entirely superseded or abrogated by the statutes above set out, the indictment may be sufficient.
It becomes important then to examine and ascertain whether or not our statute on conspiracy operates a repeal of the common law on the subject. There are three ways in which the common law on a given subject may be repealed. First, by express words to that effect contained in the statute; second, by such repugnance
In consonance with these principles, the rule obtains that statutes in derogation of the common law are to he construed strictly and as not operating a repeal of the prior law beyond their words or the clear repugnance of their provisions. That is, the new law is treated as replacing the old only in so far as it is directly and irreconcilably opposed thereto in terms. [Bishop on Statutory Crimes (3 Ed.), sec. 155; Casey v. St. Louis Transit Co., 116 Mo. App. 235.] The reasoning of the law is to the effect that when the legislative power professes to add to a former law, as it does by the contribution of an affirmative statute on the subject, it is not permissible to assume for that authority an intention also to subtract from' the former law while there remains any admissible rule of the interpretation applicable to the old law, the new law, or both laws, which will enable the two to stand as rules of decision. Prom an ’ exhaustive examination of the subject, the cases both ancient and modern, reveal numerous combinations to accomplish an end by unlawful means and to accomplish an unlawful purpose by means not unlawful, other than those enumerated in our statute, to have been adjudged sufficient to constitute the offense of conspiracy at common law. This being true, of course the Missouri statutes above quoted do not cover the whole subject-matter as it existed in the old law. There are to be found in those statutes no express
“Conspirators be they that do confederate or bind themselves by oath, covenant, or other alliance, that every of them shall aid and bear tbe other falsely and*529 maliciously to indict, or cause to indict, or falsely to move or maintain pleas; and also such as cause children within age to appeal men of felony, whereby they are imprisoned and sore grieved: and such as retain men in the country with liveries or fees for to maintain their malicious enterprises (and to drown the truth) ; and this extend eth as well to the takers as to the givers. And stewards and bailiffs of great lords, which by their seigniory, office, or power undertake to bear or maintain quarrels, pleas, or debates that concern other parties than such as touch the estate of their lords or themselves. This ordinance and final definition of conspirators was made and accorded by the king and his counsel in his Parliament the thirty-third year of his reign.” (33 Edw. 1, stat. 2; sometimes cited as 21 Edw. 1.) [2 Bishop, New Crim. Law, sec. 174. See also 1 Hawkins, Pleas of the Crown, 444, sec. 1.]
The most respectable and accurate authorities on the question concur in the view that this statute did not abrogate the prior common law on the subject. It is said that the existence of other punishable conspiracies than those which it enumerates are not superseded thereby, and that the common law in respect of conspiracy continues to obtain, notwithstanding the statute. This for the reason the statute is neither repugnant to nor inconsistent with the common law. The authorities argue the mere fact that certain acts which were not known prior thereto to constitute conspiracy are declared by the statute to constitute the offense, cannot render other acts not mentioned no longer criminal. And it is said one act which in law amounts to an offense will not cease to be such because, another act is merely declared by statute without negative words or clearly implied negative intention, to amount to the same. See the noted case of State v. Buchanan, 5 Har. & J. (Md.) 317, 9 Amer. Rep. 534, 547; State v. Norton,
It appears also from an historical examination that the pioneer statutory enactment on the subject of conspiracy in this country is thatwjf New York, after which many of the States have followed (2 Bishop, New Crim. Law (8 Ed.), secs. 237, 239; People v. Fisher, 14 N. Y. 9, 14; 28 Amer. Dec. 501; State v. Norton, 23 N. J. L. 33; 3 Zab. 33). Our statutes on the subject are largely patterned thereafter, although not in the precise verbiage. The New York statutes touching the question of conspiracy are sections 168, 169, and 170 and 171 of the New York Criminal and Penal Code. By a comparison of our own statute (sec. 2152, supra), with section 169 of the New York code it appears that, after omitting the fifth subdivision of the New York section, our statutory provisions are substantially the same on the subject; while our section 2153, introducing the innovation and modification of the common law in respect to the overt act, except for the use of two dissimilar words which in no manner change its sense, is identical with section 171 of the New York code on the same subject. There is a notable distinction, however, in respect to the
To examine, then, the offense of conspiracy. It is indeed difficult to formulate an accurate definition of conspiracy at common law which will incorporate all of the acts punishable under this description, without including as well acts which may not be punishable. Therefore, in Commonwealth v. Hunt, 4 Metc. (Mass.) 111, 123, Chief Justice Shaw said: “Without attempting to review and reconcile all the cases, we are of opinion, that as a general description, though perhaps not a precise and accurate definition, a conspiracy must be a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means.” [See also 2 Bishop, New Crim. Law (8 Ed.), sec. 171, 175; 6 Amer. and Eng. Ency. Law (2 Ed.), 831, 838; Hart v. Hicks, 129 Mo. 99, 104.] The gist of the offense at common law is a corrupt combination which involved an infringement of the law either in accomplishing the
From what has been said, it will appear the offense of conspiracy may arise from a corrupt confederation with an unlawful purpose in either one of two ways. The offense may be complete under the old law, first, if the confederation be to do, by concert of action, either .direct or remote, a criminal or unlawful act by any means, whether unlawful or not; or second, to do an act not in itself criminal or unlawful, by criminal or unlawful means. It will be observed that the statement of the doctrine includes either a criminal or unlawful end or the employment of criminal or unlawful means. On this statement there arises for consideration, in a more or less remote degree, the question as to what
There can be no doubt whatever on the question of conspiracy when the parties combine to violate the criminal law. Of course in every case where the confederation is for the purpose of doing, by direct or remote concert, an act which would amount to a criminal offense if done by one of the parties, notwithstanding the confederation, the offense is complete. [State v. Buchanan, 5 Har. & J. (Md.) 317, 9 Amer. Rep. 534; 6 Amer. and Eng. Ency. Law (2 Ed.), 848, 852.] And it is said by Mr. Bishop (2 Bishop, New Orim. Law (8 Ed.), sec. 178) that the term unlawful in this connection, “signifies neither Indictable’ nor ‘criminal’ though it includes both, but it means ‘contrary to law,’ which may be the law of the criminal'courts or of the civil.” [See also 2 Bishop New Crim. Law (8 Ed.), sec. 172; Reg. v. Warburton, Law Rep. 1 C. C. 274, 276; State v. Norton, 23 N. J. L. 33, 3 Zab. 33; 6 Amer. and Eng. Ency. (2 Ed.), 849, 850.] However, the term “unlawful” is comprehensive indeed, and the important question with which the court is concerned arises therefrom. The question suggests the thought: is the word “unlawful,” when thus employed, to be interpreted in the full measure of its significance? Sergeant Hawkins seems to have entertained the view that in considering the purpose to be effected by the conspirators the word “unlawful” should be given its most comprehensive significance. He says that “all conspiracies, whatsoever, wrongfully to prejudice a third person, are highly criminal at common law.” [1 Hawkins, Pleas of the Crown, 446.] The statement is nevertheless somewhat modified by his illustrations. In view of the authorities, eminent judges have expressed grave doubts touching the accuracy of this broad assertion of the doctrine. [Comm. v. Hunt, 4 Metc. (Mass.) 111; State v. DeWitt, 2 Hill (S. C.)
There can be no doubt that the facts alleged in either count of the indictment present a case falling within the influence of the principle last stated. The indictment in the first count charges in substance that the defendant conspired to, and in execution of the conspiracy, induced certain mechanics to quit the employ of William Burke, and would not permit them to enter again in his employ although he was in sore need of their services, until Burke had first paid to the defendants $200 to withdraw their influence in that behalf, and that their purpose was to thus unlawfully exact $200 from Burke; which he paid. The second count charges in substance that the mechanics mentioned voluntarily quit the employ of Burke and that defendants corruptly conspired to and did so influence them as to prevent their return to his employ, although he was in great need of their services, unless Burke paid the defendants $200 to withdraw their influence, and that their purpose was to thus unlawfully exact $200 from Burke; which payment he made, etc. Prom all
The indictment alleges in each count that the purpose of the conspiracy was actually accomplished and sets out sufficient facts from which an overt act, essential in the law as modified by our statute, appears. This being true, it charges an offense at common law as modified by our statute touching the commission of some overt act in case of conspiracies other than those to commit a felony upon the person of another, or to commit arson or burglary. [Sec. 2153, R. S. 1899; sec. 2153, Mo. Ann. St. 1906; State v. Truenell, 79 Mo. App. 243.]
The remaining questions suggested in the briefs do not merit the attention of the court. The judgment should be reversed and the cause remanded. It is so ordered.