| Vt. | Oct 15, 1894
I. It is contended that the information is insufficient. Neither count is under Section 4226, R. L. That section provides that, “A person who threatens violence or injury to another person with intent to prevent his •employment in a mill, manufactory, shop, quarry,” etc., •shall be punished, etc. It evidently is not directed to cases where two or more persons act in concert, as in sections .4236 and 4237. Nor is either count under section 4227, which is directed against persons who., by threats, intimidation or force, drive men from their employment with intent to prevent the prosecution of work in such mill, etc. The second count avers that the respondents threatened the Wet-more & Morse Granite Co. that they would prevent its obtaining workmen if it did not discharge McClure, but does not aver that the threats were made with such an intent as is necessary to bring the case within section 4227.
Conspiracy.is an offence at common law. Bishop says it is connected with every form of wrong-doing cognizable by the law; that it is the con-upt agreeing together of two or more persons to do by concerted action something unlawful, •either as a means or an end. The unlawful act must either be such as would be indictable performed by one alone; or, not being such, be of. a nature particularly adapted to injure the public, or .some individual, by reason of the combination.
“The reports, English and American, are full of illustrations of the doctrine that a combination of two or more persons to effect an illegal purpose, either by legal or illegal means, whether such purpose be illegal at common law or by statute; or to effect a legal purpose by illegal means, whether such means be illegal at common law or by statute,, is a common law conspiracy. ' Such combinations are 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 ”;
And cites, among other authorities, 2 Russ, on Crimes, “that all conspiracies whatever, wrongfully to prejudice a third person, are highly criminal at common law.” See notes to this case in 59 Am. R. 710; The King v. Mawbury., 6 T. R. 636.
The counts of this information áre in substantial compliance with the common law precedents. 2 Crim. Proced. chap. 18. They are in all material respects like those in the indictment in State v. Stewart et als., which were held sufficient as setting out a conspiracy at common law. Our statute, R. L., s. 689, adopts so much of the common law of England as is applicable to the local situation and circumstances, and is not repugnant to our constitution and laws.
The main question that arises upon this branch of the case is whether the prosecution could be by information or must be by indictment. The respondents’ counsel argue that conspiracy can be charged only by indictment, as conviction thereof was followed at common law by villainous judgment.
The ancient punishment of conspiracy was that called villainous judgment, which was that the offenders should lose the freedom or franchise of the law, so that they should be disqualified as jurors or witnesses, and have their lands.
R. L., s. 1618, provides that state’s attorneys may prosecute by information all crimes except capital and those punishable by imprisonment in the state prison more than seven years. State v. Haley, 52 Vt. 476" court="Vt." date_filed="1880-01-15" href="https://app.midpage.ai/document/state-v-haley-6581270?utm_source=webapp" opinion_id="6581270">52 Vt. 476.
The first count charges a conspiracy to prevent McClure’s obtaining employment; the second, the actual accomplishment of the purpose; both charge a conspiracy to do acts unlawful at common law by means unlawful under the statute. State v. Stewart et als.
In section 940, Bish. Crim. Law, it is said that the ordinary and appropriate common law punishment for a misdemeanor is fine and imprisonment, or either, in the discretion of the court; that it is inflicted in all cases in which the law has not provided some other specific penalty.
Section 4365, R. L., provides that where an offence is declared by law to be punishable by imprisonment, and it is not specified that such imprisonment shall be in the state prison, it shall be construed to mean that it shall be in the house of correction. The words, “declared by law,” do not necessarily or reasonably mean statute law only, but include the common law whenever it defines an offence and makes it punishable by imprisonment. In this view, the claim that prosecution can only be by indictment is not maintained.'
II. It is a general rule that the facts and circumstances
It is elementary that an indictment, information or complaint must not charge the accused disjunctively, so as to leave it uncertain what is relied on as the accusation against him. Thus, an indictment which alleged that the defendant made a forcible entry into two closes of meadow or pasture, was held bad. Speart's case, 2 Rol. Abr. 81; so an information which alleged that the defendant sold beer or ale without an excise license, The King v. North, 6 Dowl. & Ryl. 143; and where one was charged with committing a certain nuisance or causing it to be committed, Rex v. Stoughton, 2 Stra. 900. In Rex v. Stocker, 1 Salk. 371, an indictment for forging or causing to be forged, etc., was held ill. But Lord Mansfield said in Rex v. Middlehurst, 1 Burr. 400:
“Upon indictments, it has been so determined, ‘That an alternative charge is not good (as ‘forged or caused to be forged’), though one only need be proved, if laid conjunctively (as ‘forged and caused to be forged’). But Ido not see the reason of it; the substance is exactly the same; ■the defendant must come prepared against both; and it makes no difference to him in any respect.”
A forcible illustration of a disjunctive charge is Ex parte Pain, 5 B. & C. 251, s. c. 11 Eng. C. L. 450. The indictment was under a statute which prohibited three kinds
Rex v. Morley, 1 Y. & J. 221, was under a statute which enacted that no foreign silks or velvets should be imported or brought into Great Britain,' upon penalty, etc. The averment in the count upon which the trial was had was “that the defendant imported or caused to be imported,” etc. This was held bad for uncertainty. Several similar cases where the indictments were held ill are referred to in the opinion; as Wingfeld v. Jaffery, 1 Lord Raym. 284, “for selling live cattle or causing them to be sold”; Attorney General v. Farr, 4 Price 122, where the defendant was charged “with having been assisting or otherwise concerned in unshipping smuggled goods”; King v. Stocker, 5 Mod. 137, where the charge was “for making and fabricating, or causing to be made and fabricated, a bill of lading.” It was said by the court in that case that, “It is true, in a strict sense, that he who causeth a forgery to be done is a forger himself, but then it ought to be so laid in the indictment”; that one was the proper act of the party, the other not, and the circumstances might require a distinct consideration as to the fine. In Davy v. Baker, 4 Burr. 2471, the declaration was that the defendant received a gift or reward, and was held bad, it not stating of what the gift or reward consisted.
In all these cases there is uncertainty in respect to the act with which the respondents are charged. Generally the ■charge is in the alternative, as that the respondent.did one
In Commonwealth v. Gray, 2 Gray 501, the complaint was that the defendant, without license, etc., did sell spirituous or intoxicating liquor to one White; held, that as the complaint left it uncertain whether the defendant was charged with having sold spirituous liquor, or intoxicating liquor not spirituous, it was insufficient to sustain a judgment.
But where a person was charged with having in his possession ten counterfeit bank bills, or promissory notes, with intent, etc., the indictment was held sufficient upon the ground that “ promissory note” was used merely as explanatory of “bank bill,” and meant the same thing. Brown v. Commonwealth, 8 Mass. 59. In State v. Gilbert, 13 Vt. 647" court="Vt." date_filed="1841-04-15" href="https://app.midpage.ai/document/state-v-gilbert-6572545?utm_source=webapp" opinion_id="6572545">13 Vt. 647, an information was held sufficient which alleged that the defendant feloniously stole, took and carried away a mare of a bay or brown color, the court holding that it was unnecessary to describe the color and that the colors named were the same.
In this case, the material averments in the first count, that the respondents entered into a conspiracy together, that the conspiracy was against McClure, that the purpose was to be accomplished by threats, intimidation and violence, are single and definite. But it is contended that the averment that the conspiracy was to prevent McClure “from obtaining work or employment, or continuing in his said work and employment” is alternative and bad. As it is alleged that McClure was in the employment of that corporation when the conspiracy was formed, obtaining employment in its shops and continuing employment there are synonymous terms. The two words convey a conjunctive and not a disjunctive meaning. Any other signification than that the conspiracy was to prevent McClure from having employment in those shops would be forced and unnatural. With
The same reasoning applies to the second count, which contains the further averments of threats to McClure to ■drive him out of employment.unless he would join the respondents’ branch of the Union ; of threats to the corporation that unless it discharged him from its service they would prevent its obtaining any workmen, and that it did drive McClure out of the employment of the corporation. Both counts contain unnecessary words, but the material .allegations are not uncertain. While the rule requires that ■every offence shall be laid with reasonable certainty — “ certainty to a certain extent in general ” — both counts apprised the respondents with sufficient certainty of the offence of which they were accused. Greater strictness than this •“ would tend to render the law nugatory and ineffectual, and destroy or evade the very end of it.”
III. The respondents’ counsel contend that the testimony •of Eagan and McDonald was improperly admitted. It consisted of a conversation had between those witnesses and Dyer and Morrison, two of the respondents, on the Sunday next after the acts complained of. The evidence of the state had tended to show that the respondents had driven McClure from the employment of the Wetmore & Morse Granite Company, and that on Saturday of that week he ■engaged to do some granite carving for Eagan ; that on Sunday Dyer, McDonald and Morrison were at Eagan’s shop to inquire about the agreement between Eagan and McClure ; that Eagan told Dyer and Morrison of the agreement he had made; that McClure had afterwards told him of the trouble he had had at the Wetmore & Morse shops; that he
The testimony of Hernon was only to the effect that at Eagan’s request he made inquiry whether the retention of' McClure by Eagan would make trouble, and that he reported to the latter the result, which was testified to by Eagan. It amounted merely to this, that Hernon was the means through which Eagan ascertained a certain fact. It was immaterial how Eagan ascertained the fact or whether he ascertained it at all, or whether he retained or dismissed McClure from his service. The point was that Dyer and Morrison were at Eagan’s making inquiry about his employment of a non-union man, and in the same connection discussing the subject of McClure’s dismissal from the Wetmore & Morse shops.
The state was entitled to the testimony of Deputy Sheriff Camp. It tended to show that while Morrison was under arrest he made certain admissions to the officer about his connection with the union, the office he held in it, and his action in respect to McClure. It is true that he claimed to have acted under the instruction of other respondents and that he was not in fault, but so far as his statements tended to inculpate himself they were admissible. So far as they tended to criminate others the jury were carefully instructed as follows :
*703 “But the declarations of one of the respondents not made in the prosecution of the undertaking, but after its completion, are not evidence against the others. For instance, the testimony of the witness Camp as to what was said to him by Morrison, is to be considered only as affecting Morrison, and is not evidence against the others.”
This was a correct instruction in respect to the use they were to make of this evidence.
IV. At the conclusion of the testimony the respondents’ counsel made the following motion: “We make a formal motion asking for a direction from the court, directing an acquittal of each one of the respondents upon the ground that there is no evidence to justify their conviction under either of the counts in.the information,” which motion was overruled. It is now claimed that it should have been sustained on two-grounds : First, that the real name of the organization to-which the respondents belonged was the Granite Cutters’ National Union, whereas it was called in the second count in the information the National Stone Cutters’ Union ; second, that there was no evidence tending to connect Dyer with a conspiracy against McClure, and that he should have been discharged.
The motion could not have been sustained on the first ground because it failed to call the attention of the court to the misnomer. The court was not bound to have knowledge of the name of the organization. It is well settled that a motion for a verdict should state the precise grounds on which it is based, or the court may well disregard it. State v. Nulty, 57 Vt. 543" court="Vt." date_filed="1885-01-15" href="https://app.midpage.ai/document/state-v-nulty-6582595?utm_source=webapp" opinion_id="6582595">57 Vt. 543. The defect was not of substance and the variance was so immaterial that it might have been cured by amendment had the attention of the court been directed to it. It is first pointed out in this court, which is equivalent to filing the motion here.
The other question must be determined by the evidence. That introduced by the state tended to show the following-facts : That there was an organization called the Granite Cut
McClure refused to join and on November 22 quitted his employment.
The state’s evidence further tended to show that Morrison procured a meeting of' the executive committee to be held at Barre on Saturday evening, Nov. 23rd; that it was held to investigate McClure’s case ; that Morrison made a statement of the trouble with the latter, of McClure’s letter to the meeting, of the meeting held at noon of the 22nd at the shops, and that while it was in session word came that McClure “had packed up and gone”; that Dyer whs present at this meeting and recorded its proceedings and he and McDonald were appointed to go to Montpelier the next day to investigate ; that they went accordingly and had the interview with Eagan before referred to, also with the secretary of the Montpelier branch.
The evidence did not tend to show that Dyer made any threats to or had any communication with McClure, yet he was a prominent officer in an organization whose purpose was
The motion in arrest on the ground of the insufficiency of the information has already been considered.
fitdgment that there was no error in the proceedings of the county court, and that the respondents take nothing by their exceptions.