State v. Glidden

55 Conn. 46 | Conn. | 1887

Carpenter, J.

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; each part having reference to a class of objects or purposes which may form the subject of a criminal conspiracy.

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 legal right to do, and to do an act, (employ the defendants and such persons as they should name,) which it had a legal right to abstain from doing. There can be but one answer to the question—the acts proposed are clearly prohibited by the statute.

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 common law that are not defined by any statute. The statute prescribes a penalty for such cases without attempting to define in advance the acts which shall constitute an offense. It is left for the court to determine in each particular case whether it is or is not an offense. For instance, it has been held an offense at common law for a prisoner to escape from jail, and for one to solicit another to commit the crime of adultery. Neither of these acts is forbidden by statute, yet it was held in each case, after the act, that it was an offense. The supposed hardship is only apparent; it is not real. The danger that an innocent man will be punished criminally for a conspiracy, because the act was not forbidden by the written law, is very small. It is hardly supposable that prosecutions will be instituted and sustained by the court and jury unless the acts done or contemplated are clearly illegal and morally wrong; so much so as to leave little or no room for a right-minded man to doubt.

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 nothing unlawful, and acts with due regard to the rights of others; and that the occasion for such an announcement should be, not an attempt by government to interfere with the rights of the citizen, nor by the rich and powerful to oppress the poor, but ah attempt by a large body of workingmen to control, by means little if any better than force, the action of employers. The defendants and their associates said to the Carrington Publishing Company, “ You shall discharge the men you have in your employ, and you shall hereafter employ only such men as we shall name. It is true we have no interest in your business, we have no capital invested therein, we are in no wise responsible for its losses or failures, we are not directly benefited by its success, and we do not participate in its profits; yet we have a right to control its management and compel you to submit to our dictation.” The bare assertion of such a right is startling. The two alleged rights cannot possibly co-exist. One or the other must yield.

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 power by men, like the taste of human blood by tigers, creates an unappeasable appetite for more.

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 ?

It is further alleged that another purpose of the defendants was to injure and oppress John E. Skinner and seven othér workmen of the Carrington Publishing Company, by depriving them of their employment. What we have already said applies equally well to this purpose of the defendants. The workmen named have just as good a right to work for the corporation, as the defendants have, and this right is entitled to the same consideration and the same protection.

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 wantonness and malice. Any one man, or any one of several men, acting independently, is powerless; but when several combine and direct their united energies to the accomplishment of a bad purpose, the combination is formidable. Its power for evil increases as its numbers increase. No one man can drive these workmen from their situations; numbers, if allowed their will, may do it. The intention by one man, so long as he does nothing, is not a crime which the law will take cognizance of; and so too of any number of men acting separately; but when several men form the intent, and come together and agree to carry it into execution, the case is changed. The agreement is a step in the direction of accomplishing the purpose. The combination becomes dangerous and subversive of the rights of others, and the law wisely says that it is a crime.

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 fact that it is alleged that one object of the defendants was to extort money Rom the Carrington Publishing Company. It must be conceded that the exaction of money otherwise than by legal means is unlawful in a criminal sense. But the sufficiency of this information does not depend upon that allegation. It is therefore unnecessary to notice it further.

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 tenants, and the tenantry suddenly retaliated in a most unexpected way by, in the language of schools and society, sending Captain Boycott to Coventry in a very thorough manner. The population of the region for miles round resolved not to have anything to do with him, and as far as they could prevent it, not to allow any one else to have anything to do ivith him. Bis life appeared to he in danger—he had to claim police protection. His servants fled from him as servants flee from their masters in some plague-stricken Italian city. The awful sentence of excommunication could hardly have rendered him more helplessly alone for a time. No one would work for him—no one would supply him with food. He and his wife had to work in their own fields themselves, in most unpleasant imitation of Theocritan shepherds and shepherdesses, and play out their grim eclogue in their deserted fields with the shadows of the armed constabulary ever at their heels. The Orangemen of the north heard of Captain Boycott and his sufferings, and the way in which he was holding his ground, and they organized assistance and sent him down armed laborers from Ulster. To prevent civil war the authorities had to send a force of soldiers and police to Lough Mark, and Captain Boycott’s harvests were brought in and his potatoes dug by the armed Ulster laborers, guarded always by the little army.”

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 been attended, with more or less violence; and it cannot be denied that the natural tendency is, especially when applied by the ignorant and vicious, to attempt to make it successful by force. It too often leads to serious disturbances of the peace and even murder. We are loth however to assume that these defendants intended any such consequences. Nevertheless it is a dangerous instrumentality to use; and if those instigating and resorting to it do not of their own accord take notice of its peril and voluntarily abandon its use, as we sincerely hope they will, the courts at no distant day will be called upon to recognize its dangerous tendency and treat it accordingly.

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 purposes. Wliat Kidd said was in effect that he did not believe the Carrington Publishing Company would fight them as the News did; that they would do the same as they had in the News case, and appeal to the merchants to take their advertisements out, and appeal to the subscribers; and that they would not do as they had done in the News case, but if they had another battle they would have to pay the expenses of the boycott. These declarations were made to one Skinner, a workman in the Courier office. At some time previous to the declarations in question he had had an interview with Kidd and the defendant Glidden, at which they attempted to induce him to take part with the Union in the controversy with the Carrington Company—in other words to join the conspiracy. The declarations in question, following the efforts by Glidden and Kidd to win over Skinner, may well be regarded as supplementary to those efforts and designed to make them successful; and so were acts in the prosecution of the object of the conspiracy, and as such Avere admissible.

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.

A proposed agreement was submitted to the News during the progress of the boycott on that paper by these defendants, or some of them, who were active in that transaction. When offered in evidence it was objected to but admitted. It is now insisted that it ought not to have been received for the reason that it is not admissible to prove that the defendants committed a similar offense for the purpose of proving that they committed the offense charged. That proposition is c'oneeded. But we do not understand that the evidence was offered or received for any such purpose. These defendants were active in boycotting the News." In this transaction they frequently referred to that; and proclaimed their purpose to pursue the same general policy, including a demand that the expenses should be paid. The effect of that was a threat; and was understood as such by the parties. Assuming, as we do, that the parties also understood in a general way the details of the News boycott, they must also have understood just what they were to expect. In order that the jury may appreciate the full force of the threat it is necessary to possess them as far as may be with the same knowledge. The better way to do that would seem to be to show what was done in that case. That disclosed the purposes and intention of the conspirators in the present case. By frequent reference to it as a precedent they made the details of that case to some extent at least relevant and material.

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, and to which the state on the direct examination had not referred or alluded; and the witness was asked to state what Glidden at such different and subsequent interview said upon this subject of money demand from the News. This inquiry was objected to and excluded. That ruling was clearly correct.

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 circulars. That is apparent from the fact that Mail-house himself was first offered as a witness. He would hardly have been offered for the purpose of proving his own declaration, as any other witness could have sworn to it just as well. He was manifestly offered to prove that he printed the circulars.

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.