55 Conn. 46 | Conn. | 1887
This is an information for a conspiracy. The defendants demurred to the information; their demurrer was overruled. They then pleaded not guilty ;• the verdict was guilty as to all but one of the defendants; the defendants convicted appealed. The appeal raises a question as to the sufficiency of the information, and also some questions of evidence.
Is an offense sufficiently charged in the information ? There are six counts. The verdict was taken separately as to each defendant on each count. The three defendants who were convicted were found guilty on all the counts.
[The judge here states the substance of the several counts, which is given ante, p. 48.]
We assume that it was the intention of the attorney to charge but one offense, as all the counts are manifestly based upon one and the same transaction. The first count seems to embrace the substance of all the others, so that we have no occasion further to consider the different counts separately.
We will next inquire—what is a criminal conspiracy? We will not attempt to formulate in a single sentence a definition which will embrace every case of conspiracy which the law will regard as criminal. Such a definition will of necessity embrace not only a great variety of subjects, but albo many distinct and independent classes of subjects. We shall therefore have a better understanding of the matter if we consider each part of such a definition by itself;
In the first place, it seems to be generally conceded that if two or more persons confederate and agree together to commit some crime or misdemeanor, such confederation or agreement is itself an offense. Here we are hardly on debatable ground; and here we will pause and apply this partial definition to this information.
A statute passed in 1878 provides that “ every person who shall threaten or use any means to intimidate any person, to compel such person, against his will, to do or abstain from doing any act which such person has a legal right to do, or shall persistently follow such person in a disorderly manner, or injure or threaten to injure his property, with intent to intimidate him, shall upon conviction be liable to a fine not exceeding one hundred dollars, or imprisonment in the county jail six months. ” Session Laws of 1878, cli. 92.
This statute was unquestionably designed as a substitute for the act of 1877, which doubtless had its origin in the apprehension which prevailed throughout the country at the time of and soon after the trouble on the Pennsylvania Railroad, during which there was such an immense destruction of property at Pittsburg. The operation of that act was limited to railroad, gas and telegraph companies. The act of 1878 removed the limitation, and was designed to protect all persons, natural or artificial, employers or employees, in the management and control of their own business. . It simply extended the remedy. We cannot therefore limit the act of 1878 to subjects embraced in the act of 1877, without doing violence to the manifest intention of the legislature.
Do the acts which, it is alleged, the defendants conspired to do, fall within the prohibition of the act of 1878 ? They proposed to threaten and use means (the boycott) to intimidate the Carrington Publishing Company, to compel it against its will, to abstain from doing an act, (to keep in its employ the workmen of its own choice,) which it had a
We might perhaps stop here; but.the argument of the case took a much wider range, and the case itself will justify, and the times in which we live seem to require, a more extended examination of the subject.
Conspiracies against the government, and conspiracies to hinder or obstruct the administration of justice, which are also regarded as criminal conspiracies, need not be considered in this case.
It has often been said that a conspiracy to effect an unlawful purpose, or a lawful purpose by unlawful means, is an offense. But this is said to be a limitation rather than a definition. It certainly lacks definiteness. Many acts are said to be unlawful which would not be the subject of a criminal conspiracy. Other acts are unlawful because they are in violation of the criminal law or of some penal statute. If the ends or the means are criminal in themselves, or contrary to some penal statute, the conspiracy is clearly an offense. Between these two extremes a great variety of cases may arise, many of which ought not to be regarded as criminal. Suppose two or more boys, for instance, agree to go upon another’s land; the proposed act is or may be a trespass, and therefore unlawful. If they do not go no harm is done; if they do go they are or may be liable civilly, but no one would seriously contend that in either case they would be liable criminally for the conspiracy. But suppose two or more conspire unjustly and wrongfully to deprive another of his liberty or property; then, as we shall hereafter see, the criminal law may take cognizance of the act. Of course it is difficult if not impossible to define accurately and clearly in advance what would and what would not be an offense. Hence the difficulty of regulating by statute in all eases the law of criminal conspiracy. But this difficulty is not confined to these cases. There are other offenses at
If we were to attempt to give a rule applicable to this branch of the subject, we should say that it is a criminal offense for two or more persons corruptly or maliciously to confederate and agree together to deprive another of his liberty or property. Such a rule is proximately correct and practically just.
Now if we look at this transaction as it appears on the face of this information, we shall be satisfied that the defen'dants’ purpose was to deprive the Carrington Publishing Company of its liberty to carry on its business in its own way, although in doing so it interfered with no right of the defendants. The motive was a selfish one—to gain an advantage unjustly, and at the expense of others; and therefore the act was legally corrupt. As a means of accomplishing the purpose the parties intended to harm the Carrington Publishing Company, and therefore it was malicious. It seems strange that in this day, and in this free country—a country in which law interferes so little with the liberty of the individual—it should be necessary to announce from the bench that every man may carry on his business as he pleases, may do what he will with his own, so long as lie does noth
If the defendants have the right which they claim, then all business enterprises are alike subject to their dictation. Ho one is safe in engaging in business, for no one knows whether his business affairs are to be directed by intelligence or ignorance—whether law and justice will protect the business, or brute force regardless of law will control it; for it must be remembered that the exercise of the power if conceded will by no means be confined to the matter of employing help. Upon the same principle and for the same reasons the right to determine what business others shall engage in, when and where it shall be carried on, &c., will be demanded and must be conceded. The principle, if it once obtains a foothold, is aggressive and is not easily checked. It thrives on what it feeds on, and is insatiate in its demands. More requires more. If a large body of irresponsible men demand and receive power outside of law, over and above law, it is not to be expected that they will be satisfied with a moderate and reasonable use of it. All history proves that abuses and excesses are inevitable. The exercise of irresponsible
Business men have a general understanding of their rights under the law, and have some degree of confidence that the government through its courts will be able to protect those rights. This confidence is the corner-stone of all business. But if their rights are such only as a secret and irresponsible organization is willing to concede to them, and will receive only such protection as such an organization is willing to give, where is that confidence which is essential to the prosperity of the country ?
Again. If the alleged right is conceded to the defendants, a similar right must be conceded to the promoters of the Carrington Publishing Company and those with whom they may associate; otherwise all men are not equal before the law. It logically follows that they in turn may control the business matters of the defendants—may determine what trade or occupation they may follow, whether to work in this establishment or in that, or in none at all. Obviously such conflicting claims, in the absence of law, can lead to but one result, and that will be determined by brute force. It would be an instance of the survival, not necessarily of the fittest, but of the strongest. That would be subversive, not only of all business, but also of law and of the government itself. The -end would be anarchy pure and simple.
Once more. Suppose the government should assert the right in the same manner to regulate and control the business affairs of the Carrington Publishing Company, and other business enterprises, how long would the people submit to it ? And yet the exercise of such a power by government would be far more tolerable than its exercise would be by secret organizations, however wise and intelligent such organizations might be; for government is established by the people and for the people, and is responsible to all the people. If it abuses its power the people have the remedy in their own hands; but if a secret organization, in the management of which the people at large have no voice, abuses its power, and is not amenable to law, where is the remedy ?
Then there are these further considerations: It is a combination, not against capital nor employers, but against fellow workmen—men whose earnings are comparatively small, and who presumably need all their earnings for the support of themselves and their families. They are ordinarily poor men, and men whose entire capital consists in their trade and time. It is proposed wantonly to deprive them of a livelihood, and practically of all means of support. If a capitalist is driven from his business he has other resources, but the poor mechanic, driven from his employment, and, as is often the case, deprived of employment elsewhere, is compelled to see his loved ones suffer or depend upon charity.
It is also a combination of many to impoverish and oppress a few. The weaker party needs and must receive the protection of the law. If in any case it is criminal for many to combine to do what any one may lawfully do singly, it would seem that this would be such a case. Numbers can accomplish what one man can not—evil as well as good; and that is the reason of the combination. The law encourages combinations for good, and combinations by workmen to better their condition by legitimate and fair means are commeudable and should be encouraged. But combinations for evil purposes, whether by one class of men or another, are detrimental to the public weal and cannot be regarded Avith favor by the courts. But combinations for good purposes may be perverted, and when their power is sought to be used to harm their fellow men, to deprive others of their just rights, then not the combination but the use of it becomes criminal. In such use there is a large element of
It is no answer to say that the conspiracy was for a lawful purpose—to better their own condition, to fix and advance their rate of wages, and further their own material interest. It is certainly true that they had a right to have such a purpose, and to use all lawful means to carry it into effect. And so a purpose to acquire property is lawful so far as it contemplates lawful means only. But if it contemplates the acquisition of money by means of murder, theft, fraud or injustice, the end does not sanctify the means.
Neither will these defendants be permitted to advance their material interests, or otherwise better their condition, by any such reprehensible means. They had a right to request the Carrington Publishing Company to discharge its workmen and employ themselves, and to use all proper argument in support of their request; but they had no right to say—-“You shall do this or we will ruin your business.'5 Much less had they a right to proceed to ruin its business. In such a case the direct and primary object must be regarded as the destruction of the business. The fact that it is designed as a means to an end, and that end in itself considered is a laAvful one, does not divest the transaction of its criminality.
In considering the demurrer we would not overlook the
Neither do we overlook the character and magnitude of this conspiracy, as evidenced by the wholesale boycotting contemplated of the patrons of the Carrington Publishing Company. Perhaps no new or different principle applies to this part of the case. We cannot forbear remarking however that it evinces a recklessness and disregard of the rights of others seldom witnessed in business affairs. Assuming, as we do, that these defendants are honest, well-meaning men, it is difficult for us to understand how they could be willing to involve the innocent patrons of the Carrington Publishing Company in embarrassment and possible ruin merely for the purpose of furthering their cause in a controversy in which these patrons were not concerned. Primé facie such conduct must be regarded as malicious and corrupt.
We will also notice that it is alleged that the conspiracy contemplated boycotting as a means to the end sought. That word is not easily defined. It is frequently spoken of as passive merely-—a let-alone policy—a withdrawal of all business relations, intercourse and fellowship. If that is its only meaning it will be difficult to find in it anything criminal. We may gather some idea of its real meaning however by a reference to the circumstances in which the word originated. Those circumstances are thus narrated by Mr. Justin McCarthy, an Irish gentleman of learning and ability, who will be recognized as good authority. In his work entitled “England under Gladstoné,”he says:—“The strike was supported by a form of action, or rather inaction, which soon became historical. Captain Boycott was an Englishman, an agent of Lord Earne, and a farmer of Lough Mark, in the wild and beautiful district of Connemara. In his capacity as agent he had served notices upon Lord Earne’s
If this is a correct picture the thing we call a boycott originally signified violence, if not murder. If the defendants in their hand-bills and circulars used the word in its original sense in its application to the Carrington Publishing Company, there can be no doubt of their criminal intent. We prefer however to believe that they used it in a modified sense. As an importation from a foreign country we may presume that they intended it in a milder sense—in a sense adapted to the laws, institutions and temper of our people. In that sense it may not have been criminal. But even here, if it means, as some high in the confidence of the trades-union assert, absolute ruin to the business of the person boycotted unless he yields, then it is criminal. Instances are not wanting in our own country where the boycott has
From these considerations it is apparent that the purpose of this conspiracy, or the means by which it was to be accomplished, or both, were not only unlawful, but, as some authorities express it, “ were in some degree criminal.”
We have carefully examined the evidence in this case and are of the opinion that it is sufficient to sustain the verdict. The only point which we regard as debatable is that relating to the purpose to demand money to pay the expenses of the boycott; but we think on the whole the jury were justified in finding that the parties concerned were given to understand that they would be required to pay the expenses. As the boycott never reached such a stage as that such a demand could with propriety be made, there is no direct evidence that there was any intention to make it, but there were abundant intimations that such a demand would be' made, and there can be little doubt that such a probability Avas distinctly presented as an inducement not to prolong the contest.
The declarations of one Kidd, who, as the evidence shows, was one of the conspirators, although not a defendant, were admitted in eAddence against the objection of the defendants. The declarations were made during the continuance of the conspiracy, and for the purpose on the part of the conspirators, including Kidd, of carrying the same into full effect, and related to the way and manner by which the conspirators intended to accomplish their objects and pur
As one of the means to carry the conspiracy into effect the state claimed that Glidden distributed circulars like exhibit I; and to prove that he did so distribute them, after offering evidence to prove that Glidden had been active in attempting to induce the public not to patronize the Courier, offered one Blakeman as a witness, Avho testified that on the most frequented street in New Haven he one evening saw trvo persons passing, one of whom Avas Glidden and the other he did not know; that these two persons Avere walking up and down the street in company and close together, and that from between them copies of the circular were from time to time dropped on the sidewalk, but the Avitness was unable to say Avliich of the two dropped them. The circular was as follows, in large letters: “ A word to the Avise is sufficient. Boycott the Journal and Courier.” To the admission of this circular the defendants objected; the court admitted it. We think it was properly admitted. Upon that evidence the jury might well find that Glidden distributed the circulars.
Exhibit L, which was a notice to the News that it would be charged $50 per week as its share of the expenses of the boycott, was admissible for the same reasons.
The state proved that the above mentioned paper was submitted to the News by one Fowler. During that interview the subject matter of the News paying the $500 was talked over between the committee and Fowler. It further appeared that Glidden and Mulcahy personally were not in favor of pressing the money demand, but the committee finally concluded to let it stand. On the cross-examination of Fowler his attention was called to another interview between him and Glidden, which took place subsequently,
One Mailhouse, one of the conspirators but not a defendant, was offered as a witness by the state, but declined to testify on the ground that his testimony would tend to criminate himself. The state then offered Judge Denoting as a witness to prove what Mailhouse had sworn to on the trial of another case before the City Court. His testimony was received against the defendant’s objection. The substance of the testimony was that he, Mailhouse, printed some circulars used by the defendants in this case during the existence of the claimed conspiracy, and while it was being carried on, and in furtherance thereof. This testimony was objected to, ruled in, and exception taken.
The import of the finding is, that this testimony was offered for the purpose of proving the fact that Mailhouse printed the circulars. The objection being general, perhaps it may fairly be inferred that it was on the ground that that fact was not relevant. If so, the objection is without foundation. It may have been on the ground that it was not competent to prove the fact by the admission of a conspirator who was not a party. But the record discloses no such ground of objection, and counsel for the defense do not allude to it in their brief. As that question has not been discussed we will not consider it. The only other reason for objecting to it seems to be that the testimony of Mailhouse before the City Court was not admissible as the declaration of a co-conspirator. That is the only question that has been discussed, and we must assume that it is the only one the defense intended to raise. Assuming that the defendants are right in this, still they are not entitled to a new trial, because, as we interpret the record, the testimony was not offered for the purpose of proving a mere declaration, but for the purpose of proving the fact that Mailhouse printed
The state offered one Bertha Palm as a witness, who testified, against the general objection of the defendants, that she overheard a conversation between five or six printers, members of the union, among whom was the defendant Mulcahy, the others not identified, in which it was stated, but by whom she could not say, that they were paying fifty cents a week for the expenses of the Courier boycott, and that it would be paid for by the Courier. On objection by the defendants the court ruled that this evidence was admissible.
We are inclined to think that this ruling was correct. The boycott was inaugurated and prosecuted by Typographical Union No. 47. Here were five or six of the members of that union, including Mulcahy, conversing on the subject of that boycott, and one of them remarked that they were paying money to support it, and that it would be paid for by the Courier. From the fact that these men were members of the union, in connection with the further fact that by the statement then and there made they were promoting the boycott by the payment of money, it is not going too far to assume that these men were parties to the conspiracy, and so their declarations were admissible, not only against Mulcahy, but against the other defendants as well. Mulcahy was a party to that conversation and presumptively he heard the remark. He made no reply and thereby assented to its truth. We think it tended to show that Mulcahy understood and intended that the Courier should be required to pay the expenses of the boycott.
There is no error and a new trial is denied.
In this opinion the other judges concurred.