Opinion
(Filed 13 December, 1904.)
1. BILLS OF PARTICULARS — Indictments — Grand Jury.
A bill of particulars, not being made by the grand jury, cannot supply a defect in an indictment.
2. BILLS OF PARTICULARS — Conspiracy.
Where a solicitor files a bill of particulars the State is confined in its proof to the items therein set out.
3. INDICTMENTS — Conspiracy.
The bill of particulars in this case makes sufficiently definite the charge and means by which the alleged conspiracy was to be put into execution.
4. CONSPIRACY — Indictment — Quashal.
An indictment charging that certain persons notified the prosecutor that he would not be considered in sympathy with organized labor if he employed others than union men, nor if he retained nonunion men with whom he had already contracted a year in advance; and upon refusal of prosecutor to discharge the nonunion men and not to agree to employ only union men, a notice was made in a newspaper that at a meeting of carpenters and joiners the attitude of the prosecutor was declared unfair toward organized labor and so listed, and that no union carpenter would work any material from the shop of the prosecutor after a given date, does not constitute a conspiracy.
INDICTMENT against A. Van Pelt, W. T. R. Jenkins, (634) C. A. Sherman, S.W. Henry and S. A. Sherman, heard by Judge M. H. Justice at May Term, 1904, of ROWAN.
Robert D. Gilmer, Attorney-General, J. H. Horah and A. H. Price, for the State.
T. F. Kluttz, R. Lee Wright and Overman Gregory, for the defendants.
This was an indictment against the defendants in the following words, to wit: "The jurors for the State, upon their oath, present that A. Van Pelt, W. T. R. Jenkins, C. A. Shuman, S.W. Henry and S. A. Shuman, being persons of evil minds and dispositions, together with divers other evil disposed persons, whose names are to the jurors unknown. wickedly devising and intending to injure and destroy one C. A. Rice of the county of Rowan and State of North Carolina, in his trade and business as a dealer in lumber, on 15 January, 1904, at and in the county of Rowan and State aforesaid, and within the jurisdiction of this Court, fraudulently, wickedly, maliciously and unlawfully did conspire, combine, confederate and agree together, between and amongst themselves unlawfully to injure and destroy the said C. A. Rice in his trade and business which he then and there used, exercised and carried on as aforesaid, against the peace and dignity of the State. And the jurors aforesaid, upon their oaths aforesaid, do further present that the said A. Van Pelt, W. T. R. Jenkins, C. A. Shuman, S.W. Henry and S. A. Shuman, together with other evil disposed persons whose names are to the jurors unknown, contriving and devising to injure and destroy the said C. A. Rice in his trade and business aforesaid, and as much as in them lay unlawfully and feloniously to ruin him in his trade and business as a dealer in lumber which he then and there carried on, used and exercised as aforesaid, and to prevent and hinder him from using, exercising and carrying on the said trade and business in as full, ample and beneficial a manner as he was used and accustomed to, on 15 January, 1904, in the county and State aforesaid, and within the jurisdiction of this Court, unlawfully, wickedly and maliciously did conspire, confederate, combine and agree together, with divers fraudulent (635) and wicked means and devices, to injure, oppress and impoverish the said C. A. Rice, and wholly to prevent and hinder him from using, exercising and carrying on his trade and business of a dealer in lumber as aforesaid, and caused to be published in a certain newspaper issued daily in the city of Salisbury, county and State aforesaid, a certain article in words and figures as follows, to wit:
"`ACTION OF THE CARPENTERS AND JOINERS. — At a meeting of the Carpenters and Joiners held last evening, for his attitude towards organized labor Mr. C. A. Rice was declared unfair, and so listed, and that no union carpenters would work any material from his shop after 15 February, 1904.
"`S. A. SHUMAN, SR., President. "`W. T. R. JENKINS, R. S.'
"And that the aforesaid publication was caused to be printed as aforesaid in the newspaper aforesaid on 16 January, 1904, to the great damage of the said C. A. Rice, to the evil and pernicious example of all others in the like case offending, and against the peace and dignity of the State."
Defendants moved that the State be required to file a bill of particulars to the first count in the indictment. Motion allowed, whereupon the Solicitor filed the following bill of particulars, to wit:
"The State alleges that the defendants, A. Van Pelt, S. A. Shuman, W. T. R. Jenkins, S.W. Henry and C. A. Shuman, together with other evil disposed persons to the State unknown contriving and devising with the intent to injure and destroy one C. A. Rice in his trade and business as a dealer in and manufacturer of lumber, and as much as in them lay unlawfully and maliciously to injure and ruin him in said trade (636) and business as a dealer in and manufacturer of lumber which he then and there carried on, used and exercised in the county of Rowan and State of North Carolina; and to prevent and hinder him from using, exercising and carrying on the said trade and business and manufacture in as full, ample and beneficial a manner as he was used and accustomed to, on 15 January, 1904, in the county and State aforesaid, and within the jurisdiction of this Court, unlawfully, wickedly and maliciously did conspire, combine and agree together to injure, oppress and impoverish the said C. A. Rice, and with the intent to prevent and hinder him from using and carrying on his trade and business as a dealer in and manufacturer of lumber as aforesaid, caused to be published in a certain newspaper in the city of Salisbury, county and State aforesaid, a certain article in words and figures as follows, to-wit:
"`ACTION OF CARPENTERS AND JOINERS. — At a meeting of the Carpenters and Joiners held last evening, for his attitude towards organized labor Mr. C. A. Rice was declared unfair, and so listed, and that no union carpenter would work any material from his shop after 15 February, 1904.
"`S. A. SHUMAN, SR., President,
"`W. T. R. JENKINS, R. S.'
"And that the aforesaid publication was caused by the defendants to be printed in the newspaper as aforesaid on 16 January, 1904, to the great damage of the said C. A. Rice, and that it was the intent and purpose of the defendants, by said publication, to injure, oppress and impoverish the said C. A. Rice in his trade and business and manufacture as aforesaid, and that the defendants did combine, agree and conspire together to publish said notice as above set forth for the unlawful and malicious purpose of injuring the said C. A. Rice (637) in his trade and business and manufacture as aforesaid, by inducing all persons who would otherwise have purchased lumber and material from the said C. A. Rice to refrain from so doing, for fear of the ill will of the defendants and other evil disposed persons so conspiring and contriving with them, whose names are to the State unknown, and for fear that if they — that is to say, all persons who would otherwise have purchased lumber and material from the said C. A. Rice — should so purchase the same, they, the said persons, would be subject to delay and inconvenience by reason of the refusal of the defendants, and other evil disposed persons whose names are unknown to the State, to work the material so purchased from the said C. A. Rice, and that in so conspiring and combining together to injure the business of the said C. A. Rice as aforesaid, by the publication as aforesaid, in manner and form as above set forth, the defendants intended to prevent persons desiring to purchase lumber from purchasing the same from the said C. A. Rice, and to influence and deter persons desiring lumber from procuring the same from the said C. A. Rice, with the intent to injure, destroy and damage the trade and business and manufacture of the said C. A. Rice.
"And before the said 15 January, 1904, as hereinbefore mentioned, the said A. Van Pelt, W. T. R. Jenkins and S.W. Henry, three of the defendants in this case, did unlawfully, wickedly, maliciously conspire and agree together, and did go together, on or about 13 January, 1904, to the place of business of the said C. A. Rice in the city of Salisbury, in the county and State aforesaid, and then and there notified the said C. A. Rice that he, the said C. A. Rice, could not be considered in sympathy with organized labor unless he kept constantly employed only union men, and notified him further that he would not be in sympathy with organized labor if he kept in his employ any nonunion men, notwithstanding the fact that he had heretofore employed and contracted with (638) non-union men for as much as a year in advance, and to discharge them would be a violation of his contract with such nonunion men; and upon being informed by said Rice that he would not discharge any nonunion men with whom he had contracted in advance by the year to work for him, and that he would not agree to employ only union men in his business, the said A. Van Pelt, W. T. R. Jenkins and S.W. Henry went away, and on 15 January, 1904, in furtherance of their said conspiracy and combination to injure and destroy the business of the said C. A. Rice as aforesaid, they combined and agreed among themselves and with the other defendants, and with divers evil disposed persons whose names are to the State unknown, to publish the aforesaid notice hereinbefore set forth, for the purpose aforesaid, and did actually cause the same to be published with the intention to injure and destroy the business and trade and manufacture of the said C. A. Rice as above set forth. HAMMER, Sol."
The counsel for the defendants thereupon demurred ore tenus to the bill of indictment, and moved to quash, for that the bill, together with the bill of particulars, did not charge a criminal offense. Motion and demurrer sustained, and bill quashed. The State excepted to the order of the Court and appealed to the Supreme Court.
We do not find it necessary to consider the sufficiency of the first count in the bill. By filing the bill of particulars the State, for the purpose of this appeal, makes (639) sufficiently definite the charge and means by which the alleged conspiracy was to be put into execution. The demurrer ore tenus is based upon the indictment and the bill of particulars. We, however, fully approve the language of Shaw, C. J., in Com. v. Hunt, 45 Mass. 111. "From this view of the law respecting conspiracy we think it an offense which especially demands the application of that wise and humane rule of the common law that an indictment shall state with as much certainty as the nature of the case will admit the facts which constitute the crime intended to be charged. This is required enable the defendant to meet the charge and prepare for his defense, and, in case of an acquittal or conviction, to show by the record the identity of the charge, so that he may not be indicted a second time for the same offense." It is further said that when the criminality of the offense consists in an unlawful agreement to compass some criminal or illegal purpose, that purpose must be fully and clearly stated in the indictment the criminality intended to be charged consists in the agreement to compass some purpose not unlawful or criminal in itself by the use of force, fraud, falsehood or other criminal unlawful means, such intended means must be set forth in the indictment. Lambert v. People, 9 Cow., 578. In S. v. Trammell, 24 N.C. 379, GASTON, J., says: "It is said that the gist of a criminal conspiracy is the unlawful concurrence of many in a wicked scheme and that the crime of conspiracy is complete without any act having been done to carry it into execution. This consideration renders it but the more important that the charge of conspiracy should clearly set forth the purpose and object of the combination, as in these are to be found almost the only marks of certainty by which the parties accused may know what is the accusation they are to defend."
Waite, C. J., in U.S. v. Cruikshank, 92 U.S. 542, passing upon the sufficiency of an indictment for conspiracy, says: "The accused has therefore the right to have a (640) specification of the charge against him in this respect, in order that he may decide whether he should present his defense by motion to quash, demurrer or plea; and the Court, that it may determine whether the facts will sustain the indictment. So here the crime is made to consist in the unlawful combination with an intent to prevent the enjoyment of any right granted or secured by the Constitution, etc. All rights are not so granted or secured. Whether one is so or not is a question of law to be decided by the Court, not the prosecutor. Therefore the indictment should state the particulars to inform the Court as well as the accused. It must be made to appear — that is to say to appear from the indictment without going further — that the acts charged will if proved support a conviction for the offense alleged." Mr. Justice Clifford, concurring in the result, says: "Descriptive allegations in criminal pleadings are required to be reasonably definite and certain, as a necessary safeguard to the accused against surprise, misconception and error in conducting his defense and in order that the judgment in the case may be a bar to a second accusation for the same charge. Considerations of this kind are entitled to respect, but it is obvious that if such description of the ingredient of the offense created and defined by an act of Congress is held to be sufficient, the indictment must become a snare to the accused." Pettibone v. United States, 148 U.S. 197. In S. v. Younger, 12 N.C. 367, 17 Am. St., 571, the offense is fully described and the means by which it was consummated set out, to-wit, by making the prosecutor drunk and falsely, fraudulently and deceitfully cheating him at a game of cards.
While it is the right of the defendant to demand and the duty of the Court to require a bill of particulars, this is for the benefit of the defendant and does not in any degree deprive him of the right to have the bill of indictment quashed if insufficient. Mr. Bishop well says: "The bill of (641) particulars not being made by the grand jury on oath can not supply any defect in the indictment." Crim. Prac., sec. 646. It would seem that as the defendant is entitled to demand the bill of particulars, and as the State on the trial is restricted to proofs of the facts set out, it would be more in accordance with reason, good criminal pleading and the safety of the citizen to require the State to set out in the indictment the charge in full, together with the means by which the alleged conspiracy is to be effectuated. It is so held by many courts and required by statutes. No offense is so easily charged and so difficult to be met unless the defendants are fully informed of the facts upon which the State will rely to sustain the indictment. While technical objections to indictments are not to be sustained, substantive and substantial facts should be alleged. General and undefined charges of crime, especially those involving mental conditions and attitudes, should not be encouraged. They are not in harmony with the genius of a free people, living under a written Constitution. We can see no good reason why an exception to the general rules of criminal pleading should be made in favor of this crime; certainly there is nothing in the history of the criminal law of England or this country to recommend it to the favor of courts having regard for liberty regulated by law. Such an indictment has been appropriately termed "a drag net of vague charges" to catch innocent persons, who in times of excitement may be convicted by the suspicions and prejudices of juries. An examination of the cases cited in Wright on Criminal Conspiracy, 186, discovers a state of painful uncertainty in the rulings of courts, explained frequently by the political or other bias of temper or opinions of the Judge. Certainty should never be sacrificed to the plea for simplicity. Viewed properly there is no conflict between them. We cannot but think that an omission of the needless repetition of epithets (642) and denunciatory terms of the defendant and the insertion, in place thereof, in plain language, of the facts relied upon would be conducive to that certainty and simplicity which are the real safeguards to society and the citizen. General and indefinite descriptions of alleged crimes, like general warrants, "are dangerous to liberty and ought not to be tolerated." Const., Art. I, sec. 15. "Every man has a right to be informed of the accusation against him." Ib., 11. These truths are of the essence of civil liberty. They are not to be explained away to meet the demand for speedy trials and swift punishment. "No man shall be put to answer any criminal charge * * * but by an indictment," etc. We find nothing here of "bills of particulars" drawn up, after indictment found, by prosecuting officers to aid defective bills, or bills in which, if the charge was set forth in a full and specific manner, could never have received the endorsement of a grand jury. "Bills of particulars" are suggestive of "Informations" which became odious because of the oppressive use made of them by officers of the Crown in the prosecution of persons charged with offense. When grand juries would not aid in such prosecutions "Informations" were resorted to. They recall the days of "constructive treasons." Men were hung, drawn and quartered for "imagining" the death of the King. They recall the time when Titus Oates swore away the lives of innocent men charged with being members of an imaginary "Popish Plot.'
The Solicitor having filed a bill of particulars, the State is confined "to the items therein set down." Bish. Crim. Proc., 643. We are thus brought to a consideration of the question whether eliminating all irrelevant matter, the facts charged and admitted by the demurrer constitute a criminal conspiracy — either by reason of the character of that which was agreed to be done or the means by which the agreement was to be effectuated. "The preamble and introductory matter (643) in the indictment — such as unlawfully, deceitfully, designing and intending unjustly to extort great sums, etc. — is mere recital and not traversable, and therefore can not aid an imperfect averment of facts constituting the description of the offense. The same may be said of the concluding matter which follows the averment as to the great damage, etc." Stripped of these introductory recitals and alleged injurious consequences and the qualifying epithets, attached to the facts, the averment is this, that the defendants conspired to injure the prosecutor in his trade and business and thereby impoverish him: (1) That pursuant to this agreement three of the defendants on 13 January, 1904, went together to the place of business of the prosecutor and notified him that he could not be considered in sympathy with organized labor unless he kept constantly employed union men. (2) That he would not be considered in sympathy with organized labor if he kept in his employment nonunion men — notwithstanding the fact that he had theretofore employed and contracted with nonunion men for as much as a year in advance. (3) That upon being informed by said Rice that he would not discharge nonunion men with whom he had contracted and would not agree to employ only union men, etc., the defendants published the notice set out in the bill of particulars. That the purpose of publishing said notice was to induce all persons who would otherwise have purchased lumber and material from the said Rice to refrain from doing so (a) for fear of the ill will of the defendants, etc., and other evil disposed persons; (b) that they would be subject to delay and inconvenience by reason of the refusal of the defendants and other evil disposed persons, whose names are to the State unknown, to work the material so purchased from the said C. A. Rice, etc. That by the means aforesaid the defendants intended to prevent persons desiring to purchase lumber from purchasing the same from the said C. A. Rice, etc. That (644) by the means aforesaid the defendants intended to prevent persons desiring to purchase lumber from purchasing the same from the said C. A. Rice, and to influence and deter persons desiring lumber from purchasing the same from the said C. A. Rice with the intent to injure and destroy, etc. We omit at this time any reference to the alleged motive of the defendants.
A criminal conspiracy is defined to be an agreement of or more persons two do an unlawful act or to do a lawful act unlawful means. Shaw, C. J., in Com. v. Hunt, says: "Without attempting to review or reconcile all the cases, we are of the opinion that as a general description, though perhaps not a precise or 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 unlawful means. We use the terms criminal or unlawful, because it is manifest that many acts are unlawful which are punishable by indictment or other public prosecution, and yet there is no doubt, we think, that a combination by number do them would be an unlawful conspiracy and punishable indictment. * * * But yet it is clear that it is not every combination to do unlawful acts to, the prejudice of another which is punishable as a conspiracy.
Mr. Wright in his work on Criminal Conspiracy classifies the decisions in the different States and places North Carolina in the class which holds that conspiracies are indictable "where neither the object or the means are criminal but where injury results to individuals," and for this he cites S. v. Younger 12 N.C. 357. With the exception of S. v. Younger, we find no case in our own Reports in which an indictment is sustained which did not allege a conspiracy to commit acts, or the (645) bill of particulars did not set out facts showing a conspiracy to commit acts, indictable either at common law or under some statute. It must be conceded that expression are to be found in the opinions of the Court to the contrary. In S. v. Tom, 13 N.C. 569, the charge was a conspiracy by slaves to commit murder. It was made indictable by statute. It was equally so at common law. In S. v. Trammell, 24 N.C. 379 Judge GASTON says that it is not necessary to decide whether the facts set out constitute a criminal conspiracy. The Court held that in no view were the defendants guilty. In S. v. Christianbury, 44 N.C. 46, the Court expressly declined to pass upon the sufficiency of the bill, putting the case off on the statute of limitations. In S. v. Brady, 107 N.C. 822, the second count charged a conspiracy to cheat and defraud by falsely and fraudulently representing that certain lands contained gold mines, whereas the defendant well knew that the said lands did not contain gold mines, etc. There was a motion to quash which was denied. There was a general verdict of guilty. The Court said that if either count was good it would support the verdict. This was sufficient to dispose of the appeal. The second count was undoubtedly good and the motion to quash could not be allowed. In S. v. Powell, 121 N.C. 635, MONTGOMERY, J., says that the bill charged a conspiracy to Commit an offense indictable at common law. In S. v. Wilson, 121 N.C. 650, the question is not raised or discussed — a new trial was given on other grounds. In S. v. Earwood, 75 N.C. 210, the only question decided was the admissibility of evidence upon which a new trial was given. In S. v. Howard, 129 N.C. 585, there were three counts. The first charged generally a conspiracy to cheat and defraud. The second and third, setting out the facts showing a conspiracy to rob and to obtain money under false pretenses, and the means resorted to, were nol prossed but referred to as a bill of particulars. The first count was (646) sustained by a divided Court, the present Chief Justice, writing for the majority, saying that by the second and third counts considered as a bill of particulars, the defendants were fully informed, etc. It will thus be seen that in all of the cases in our Reports a conspiracy to commit an indictable offense is charged in the indictment, or facts set forth in a bill of particulars, charging a conspiracy to commit such an offense. In Younger's case, supra, the charge in the indictment was that the defendants conspired to cheat and defraud the prosecutor, etc., and to accomplish that end they procured him to be intoxicated and engaged him to play at cards, by means whereof by falsely, fraudulently and deceitfully playing at the game of cards they cheated him, etc. It is not necessary to discuss the question whether the acts charged were indictable at common law. S. v. Phifer, 65 N.C. 321. We incline to the opinion that they were. The learned Chief Justice writing the opinion did not seem to think so, although he says: "Playing at cards for money was in itself unlawful." The word is of such varied and uncertain import that it is unfortunate that it was ever used to define a criminal act. It is not our purpose to bring the decision of Younger's case into question, but we can not accept the definition given of a criminal conspiracy. "Every combination to injure individuals or to do acts which are unlawful or prejudicial to the community is indictable." It will be noted that this case was submitted by the Attorney-General without argument and the defendants were not represented by counsel. The Court cites but one case to sustain the definition. King v. Journeyman Tailors of Cambridge, 8 Mad., 10 (1721). That was an indictment against certain journeymen tailors for a conspiracy to raise their wages. The Court said: "A conspiracy of any kind is illegal, although the matter about which they conspired might have been lawful for them to do (647) if they had not conspired to do it, as appears in the case of Tubwomen v. The Brewers." An examination of the report of that case shows the length to which counsel and Court went in sparring over technicalities and losing sight of the real merits of the question. Quite a number of objections were made to the indictment which at this day would not be listened to with any degree of respect. The Court announces the proposition that any conspiracy, however lawful its purpose, is indictable. The case has been treated with but scant courtesy in England and would not at this day be cited as authority. By statute it was made indictable for journeymen tailors to enter into any contract or agreement to advance their wages. Happily this and all other such laws have been repealed in England and were never in force in this State. Lord Campbell in Hilton v. Eckerby, 6 E. B. (88 E. C. L., 62), 1855, repudiated the definition given in the Tailors' case, referring to what it said in this and other cases as "loose expressions." He says: "I can not bring myself to believe, without authority more cogent, that if two workmen who sincerely believe their wages to be inadequate should meet and agree that they would not work unless their wages were raised, without designing or contemplating violence or any illegal means for gaining their object, they would be guilty of a misdemeanor and liable to be punished by fine and imprisonment. The object is not illegal; and, therefore if no illegal means are used, there is no indictable conspiracy. The courts have found but little difficulty in adhering to satisfactory and consistent rulings in those cases wherein the conspiracy charged is to commit acts which are criminal and indictable either at common law or by statute. Dr. Wharton says: "The conflict begins when we reach those combinations which are assumed to be indictable, not as aimed at an indictable offense, but from the idea that the policy of the law forbids (648) the reaching of the attempted object by a conspiracy." Crim. Law, 357. After discussing conspiracies to cheat and defraud, he says: "But to extend indictable conspiracies so as to include cases where acts, not in themselves indictable, are attempted by concert involving neither false statement nor concerted force should be resolutely opposed. A distressing uncertainty will oppress the law if the mere act of concert in doing an indifferent act be held to make such criminal. We all know what acts are indictable, and if we do not, the knowledge is readily obtainable. Such offenses when not defined by statute, are limited by definitions which long processes of judicial interpretation have hardened into shapes which are distinct, solid, notorious and permanent. It is otherwise, however, when we come to speak of acts which though not penal when they are committed by persons acting singly, are supposed to become so when brought about by concert which involves neither fraud nor force. * * * No man may know in advance whether any enterprise in which he may engage may not in this way become subject to prosecution. It is essential to the constitution of an indictable offense * * * that it should be prohibited either by statute or common law, but conspiracies to commit by nonindictable means nonindictable offenses, if we resolve them into their elements, are neither prohibited by common law nor by statute. * * * An act of business enterprise in purchasing goods in a cheap market for the purpose of selling them in a dear market, which in one phase of judicial sentiment would be regarded as a meritorious impetus to commercial activity, would be in another phase of judicial sentiment, as it once has been treated, an indictable offense. Legislative and judicial compromises which one court may view as essential to the working of the political machine, another court may hold to be indictable as a corrupt conspiracy." In this country, in which judges are in respect to their source of appointment and tenure sensitive (649) to changes of popular opinion and temper, amid the ever increasing acuteness of the struggle between opposing social and industrial forces, the lines which separate a criminal from a noncriminal conspiracy should be clearly defined. To a timid, conservative, judicial mind trained to regard even the slightest disturbance of such forces as portending danger to the peace of the State, a combination of the most harmless character would assume "unlawful" form and force. To a different type of judicial mind, believing that the safety and highest interest of the State are promoted by the freest possibly play of mind and action, in trade competition, "however severe and egotistical, if unattended by circumstances of dishonesty, intimidation, molestation or other such illegalities," the same combination would appear not only lawful, but stimulating to trade in the community. The study of the struggle between the ruling class and the laborers in England, culminating in the passage of the statute of 38 and 39 Vict., is of interest to the student and value to the lawmaker and judge. It is declared by that statute that an agreement or combination to do any act in furtherance of a trade dispute shall not render the person committing it indictable for a conspiracy if such acts committed by one person would not be punishable as a crime. "These latter words may almost be described as `The Workman's Charter of Liberty,' for they dispose at once and forever of the contention that a combination to do acts, not illegal in themselves, is entitled to be regarded by the law as a conspiracy." Cent. Law Reform, 253. A great English statesman said that for the first time employers and employed sat under equal laws. As indicating the practical operation of the definition of a criminal conspiracy contended for by the State we may recall some incidents coming under our observation. Not long since, the farmers producing cotton in this and other States believed that their interests (650) demanded combined action to protect themselves against what they considered an unreasonably high price charged by the manufacturers for jute cotton bagging. They openly and with the avowed purpose of compelling the manufacturers to sell bagging at a lower price and of course reduce their profits and to that extent injure them in their trade and business formed combinations and adopted measures, entirely peaceful and lawful, to accomplish their purpose. They agreed themselves, urged and by various means induced others to refrain from buying or using jute bagging. They encouraged the use of other kinds of bagging, and by and through organization maintained a peaceful but effective contest with the manufacturers. Their declared purpose was to injure, cripple and, if necessary, destroy the manufacturers unless they sold their product at a lower price. Again, at a more recent date, the producers of tobacco found the price of their product, as they thought, unreasonably low. They believed that a large and wealthy corporation, being the largest purchaser in the markets, was responsible for the low price of tobacco. Large numbers of the producers, with the avowed purpose of compelling the purchasers, and especially the said corporation, to pay them higher prices, combined and agreed that they would withhold their product from the market, urged and induced all other producers to do so. They declared their purpose to refuse to buy the goods of the corporation, and urged and induced merchants to refuse to buy or sell such goods. They held public meetings, made and issued addresses, and by many other lawful and peaceful means sought to injure and, so far as possible, destroy the offending corporation. It did not occur to any one that these men were guilty of a criminal conspiracy, nor were they. It must be noted that in neither instance was there any legal standard as to the price of cotton bagging or tobacco; they were sold in open market and, from a legal standpoint, with fair competition. The farmers who in one case were (651) buyers thought bagging unreasonably high, and in the other, being sellers, though tobacco unreasonably low. They believed that in order to protect themselves from what they regarded unfair treatment they must organize. That their purpose was to injure the manufacturer in the one instance and the purchaser in the other in their trade and business was not denied, but openly avowed; their defense being that they were seeking fair treatment at the hands of both. We must keep in mind the fact that we are discussing the question as it is affected by the common law. The proposition is that the defendants conspired for the purpose of injuring the prosecutor in his trade and business, and that it is unlawful for them to do so. It can not be that every conspiracy to injure one in his trade and business, without reference to the means to be employed, is criminal. A carpenter, or joiner, has by his apprenticeship, study and experience acquired skill and knowledge in his trade. His capital consists in his physical strength and his intellect trained and directed by his skill and experience. It is the use of this which in a sense he offers for sale. In what respect, for the purpose of securing the best prices for his labor on the best terms, do his rights differ from the man who has cotton for sale, the product of his capital — land and labor — or the man who has money to invest in mercantile or manufacturing enterprise? Each of them enters into the field of competition. Each finds that organization with others engaged in the same field of labor or investment will secure better results and fairer treatment from those with whom he deals. There is no evil or harm in organization per se. Every copartnership, corporation, joint stock company and other association of labor or capital is a recognition of this truth. We find no better illustration of the correct principle upon which this right depends and the benefits which may come from its application under proper limitations than that given by Chief Justice Shaw (652) in Com. v. Hunt, supra. "Suppose a baker in a small village had the exclusive custom of his neighborhood and was making large profits by the sale of his bread. Supposing a number of those neighbors, believing the price of bread too high, should propose to him to reduce his prices, or if he did not they would introduce another baker, and on his refusal such other baker should, under their encouragement, set up a rival establishment and sell his bread at lower prices; the effect would be to diminish the profit of the former baker and to the same extent to impoverish him. And it might be said, and proved, that the purpose of the association was to diminish his profits and thus impoverish him, though the ultimate and laudable object of the combination was to reduce the price of bread to themselves and their neighbors. * * * We think, therefore, that associations may be entered into, the object of which is to adopt measures that may have a tendency to impoverish another — that is, to diminish his gains and profits — and yet so far from being criminal or unlawful the object may be highly meritorious and public spirited. The legality of such an association will therefore depend upon the means to be used for its accomplishment. If it is to be carried into effect by fair or honorable and lawful means, it is, to say the least, innocent. If by falsehood or force it may be stamped with the character of conspiracy. It follows as a necessary consequence that if criminal and indictable, it is so by reason of the criminal means intended to be employed for its accomplishment." Although decisions have been made by some of the American courts which hold otherwise, they are in every instance based upon the principle of the journeymen tailors' or other English cases which follow low that decision. Mr. Wright, after a review of the cases, says: "These authorities on the whole, strongly favor the view that a combination to injure a private person (otherwise (653) than by fraud) is not as a general rule criminal, unless some criminal means are to be used." Cases may be found to the contrary. Judge Holmes, in his dissenting opinion in Vegelahn v. Gunter, 167 Mass. 92, discusses the question with much force and clearness. Speaking of the right of laborers or mechanics to combine to promote their interests, he says: "If it be true that workingmen may combine with a view to getting the greatest possible returns, it must be true that when combined they have the same liberty that combined capital has to support their interest, by argument, persuasion and the bestowal or refusal of those advantages which they otherwise lawfully control. * * * The fact that the immediate object of the act by which the benefit to themselves is to be gained is to injure their antagonist does not necessarily make it unlawful any more than when a great house lowers the price of certain goods for the purpose and with the effect of driving a smaller antagonist from the business. Indeed, the question seems to me to have been decided as long ago as 1842 by the good sense of Chief Justice Shaw in Com. v. Hunt." He further says: "There is a notion, which latterly has been insisted on a good deal, that a combination of persons to do what any one of them might lawfully do by himself will make the otherwise lawful conduct unlawful. It would be rash to say that some, as yet, unformulated truth may not be hidden under this proposition. But in the general form in which it has been presented and accepted by many courts, I think it plainly untrue, both on authority and on principle." See, also, his dissenting opinion in Plant v. Woods, 176 Mass. 504.
Judge Caldwell, in Ames v. R. R., 62 Fed., 714, says: "Organized labor is organized capital. It is capital consisting of brains and muscle. * * * If it is lawful for the stockholders and officers of a corporation to associate and confer together for the purpose of reducing the wages of its employees, or for devising other means for making their (654) investment more profitable, it is equally lawful for organized labor to associate, consult and confer with a view to maintain or increase wages." Thomas v. R. R., 62 Fed., 803; People v. Radt, 71 N.Y. Supp., 846. It is said: "One may refuse to deal with a firm because of a belief that it does not give honest compensation for labor, and may ask his friends or the public to do the same thing, and the conduct may do injury to the public without thereby becoming illegal." Ib. "An agreement among the members of an association of plumbers not to deal with wholesale dealers who sell to any who are not members of the association, and the sending notices to that end, do not constitute an unlawful conspiracy, since the object of the combination and the means adopted for its accomplishment are lawful. Macauley v. Tierney, 19 R. I., 255, 37 L.R.A., 455. In Mfg. Co. v. Hollis, 54 Minn. 223, it appears that the plaintiff Was a manufacturer and dealer, wholesale and retail, in lumber and other building material. The defendant was a voluntary association of retail lumber dealers. It had certain rules for its government and that of its members. The plaintiff sold two bills of lumber to contractors, or consumers, in places where members of the association were engaged in the retail business. The secretary of the association made a demand upon the plaintiff for ten per cent on the sales so made. The demand not being complied with, the secretary notified, or, as the complaint averred, threatened that unless plaintiff immediately settled the matter he would send to all members of the association the lists or notices provided by the by-laws, notifying them that plaintiff refused to comply with the rules and was no longer in sympathy with it. The Court, referring to the affidavits, etc., said: "Both the affidavits and brief in behalf of the plaintiff indulge in a great deal of strong and even exasperated assertion, and in many words and expressions of very indefinite and illusive meaning, such as `wreck,' `coerce,' `conspiracy' (655) `monopoly,' `drive out of business,' and the like This looks very formidable, but in law, as well as in mathematics, it simplifies things very much to reduce them to their lowest terms. * * * Now, when reduced to its ultimate analysis, all that the retail dealers in this case have done is to form an association to protect themselves from sales by wholesale dealers or manufacturers directly to consumers or other nondealers at points where a member of the association is engaged in retail business. The means adopted to effect this end are simply these: They agree among themselves that they will not deal with any wholesale dealer or manufacturer who sells directly to consumers not dealers at a point where a member of the association is doing business, and provide for notice being given to all their members whenever a wholesale dealer or manufacturer makes any such sale. That is the head and front of defendant's offense. * * * There was no element of fraud, coercion or intimidation, either towards plaintiff or the members of the association." The Court says that the compliance with the demand was entirely optional with the plaintiff. "The mere fact that the proposed acts of the defendants would have resulted in plaintiff's loss of gains and profits does not of itself render those acts unlawful. That depends on whether the acts are in themselves unlawful. `Injury,' in its legal sense. means damage resulting from an unlawful act. Associations may be entered into, the object of which is to adopt measures that may tend to diminish the gains and profits of another, and yet, so far from being unlawful, they may be highly meritorious."
"The complainants proceed on the theory that they are entitled to protection in the legitimate exercise of their business; that the sending of the notices to wholesale dealers not to sell supplies to plumbers not members of the association, under the penalty, expressed in some instances and implied in (656) others, of the withdrawal of the patronage of the members of the association in case of a failure to comply, was unlawful, because it was intended injuriously to affect the plumbers not members of the association in the conduct of their business, and must necessarily have that effect. It is doubtless true, speaking generally, that no one has a right intentionally to do an act with the intent to injure another in his business. Injury, however, in its legal sense, means damage resulting from a violation of a legal right. It is this violation of a legal right which renders the act wrongful in the eye of the law and makes it actionable. If, therefore, there is a legal excuse for the act, it is not wrongful, even though damage may result from its performance. The cause and excuse for the sending of the notices, it is evident, was a selfish desire on the part of the members of the association to rid themselves of the competition of those not members, with a view of increasing the profits of their own business. The question, then, resolves itself into this: Was the desire to free themselves from competition a sufficient excuse in legal contemplation for the sending of the notices? We think the question must receive an affirmative answer. Competition, it has been said, is the life of trade. Every act done by a trader for the purpose of diverting trade from a rival and attracting it to himself is an act intentionally done, and, in so far as it is successful, to the injury of the rival in his business, since to that extent it lessens his gains and profits. To hold such an act wrongful and illegal would be to stifle competition." Macauley v. Tierney, 19 R. I., 255, 37 L.R.A., 455. The Court refused to enjoin the defendants. It is urged by counsel that the guilt of defendants does' not involve what they did, but what they conspired to do. If the defendants had pleaded to the first count in the bill without calling for a bill of particulars, they would have gone to the jury on the general issue of traverse to the bill. When, however, the State files its bill of particulars, which, for the purpose of the trial, is as if the (657) means had been set out in the original bill of indictment, the question is presented whether, either in respect to the purpose of the conspiracy or the means by which it was to be accomplished, any crime is charged. If no crime is charged there is nothing for the jury to pass upon. The Court will either, upon motion, quash the indictment, or, as it did in Com. v. Hunt, supra, arrest the judgment. We are of the opinion that a conspiracy to injure one's business is not per se indictable. Do the means set out make it so? This brings us to consider the acts done by the defendants. Three of them, on 13 January, 1904, went together to the prosecutor's place of business and notified him that he could not be considered in sympathy with organized labor unless he kept constantly employed union men. Certainly the number of the defendants Was not so large as to intimidate him, and there is no suggestion that their manner was either offensive, violent or even discourteous. As we have seen, organized labor, or labor organizations, are not unlawful. The prosecutor had no legal right to demand that he should be considered in sympathy with organized labor; therefore he was not to be deprived of any legal right if he preferred to employ nonunion men, and the defendant had an equal right to consider him unsympathetic with organized labor if he exercised such right. Suppose the same number of persons, being members of the anti-saloon league, should go to a merchant's store and notify him that he would not be considered in sympathy with the temperance Cause if he employed clerks who did not belong to the league. If he continued to employ such clerks he was simply considered as unsympathetic with the cause. We fail to see any difference in principle between the act of the defendants and the case supposed. They notified him that he would not be considered in sympathy with organized labor if he kept in his employment nonunion men, although he (658) was then under contract with nonunion men for a year in advance. It is intended, we assume, in this item to charge that the defendants conspired to compel the prosecutor to break his contract with nonunion men and discharge them. It will be noted that it is nowhere charged that such was the purpose of the defendants. Not a word is said capable of that construction. Certainly nothing should be left to conjecture. To what extent a conspiracy to induce men to violate their contracts is criminal is not clear. We are not required to discuss or decide it here. There is no complaint that the conduct of the defendants Was intended to injure nonunion men. This case has no such element in it and We do not wish to be understood as expressing any opinion in regard to it The question has been before other courts. There is a painful absence of harmony in the decisions. Suppose, however, that it be conceded that the defendants did notify the prosecutor that unless he discharged nonunion men with whom he had contracted, etc., what was to be the result to him if he refused? He was to be considered as sympathetic with union. labor. This falls far short of intimidation or coercion. It will be noted that there is no charge that these defendants were members of any. secret or other organization, or that they had the power or threatened to control the conduct of large numbers of men. It is said that they, "together with other evil disposed persons, conspired," etc. Who "the other evil disposed persons" are, what, if any, relation they bear to the defendants, is not stated. This alleged conspiracy is confined to the five defendants. When informed by the prosecutor that he would not discharge any nonunion men with whom he had contracted, and that he would not agree to employ only union men in his business, the defendants "went away" and "in furtherance of the said conspiracy did actually" publish and cause to be published the aforesaid notice, etc.: "Action of Carpenters and Joiners. — At a meeting of the carpenters (659) held last evening, for his attitude towards organized labor Mr. C. A. Rice was declared unfair, and so listed, and that no union carpenters would work any material from his shop after 15 February, 1904." The counsel for the prosecutor, in their brief, say: "It is perfectly true that defendants had a right to refuse to work material from Rice's shop. That they had a right to put him on their unfair list." The criminality, they say, consists in the intent or purpose with which these things are done; this, they say, is a question for the jury. It is not easy to see how it is a question for the jury, when the defendants admit the purpose, etc. If that which they did, is lawful — if they had a perfect legal right to do it — we are unable to perceive how' the publication renders it unlawful. We `are not aware of any principle of law which makes it criminal to publish that a person has done an act which he had a perfect legal right to do, or that a person intends to pursue a course of conduct which he has a legal right to pursue. Judge Holmes says: "As a general rule, even if subject to some exceptions, what you may do' in a certain event you may threaten to do — that is, giving warning of your intention to do in that event, and thus allow the other person the chance of avoiding the consequences, so as to `compulsion' it depends upon how you `compel.'" Parker, C. J., in Nat. Protec. Ap. v. Cumming, 170 N.Y., 315, says: "A labor organization is endowed with precisely the same legal right as an individual to threaten to do that which it may lawfully do." "If an act be lawful — that is, one which a person has a legal right to do — the fact that he may in doing it be actuated by an improper motion, does not render it unlawful." Bohen Mfg. Co. v. Hollis, supra. It being properly conceded that it was not unlawful — that is, for the purpose of this discussion, criminal for the defendants to declare Mr. Rice "unfair" and to refuse to work his material, we can find nothing criminal in the publication made of their opinion or purpose. Does the fact that the defendants intended (660) to induce persons who might otherwise purchase material from Mr. Rice to refrain from doing so make their conduct unlawful? This brings us back to the original questions. Persons who might wish to buy material from Mr. Rice had no legal claim on the services of the defendants — they were under no obligation to work the material purchased from him therefore, in saying that they would not do so they deprived such persons of no legal right. They could not have maintained an action for damages against the defendants for refusing to work such material or for saying so. How, then, in a legal sense, can he be said to be injured? It is said that the purpose of the defendants in making the publication was to induce persons to refrain from purchasing material for fear of incurring the ill will of the defendants. This certainly is not unlawful. Bowen v. Matheson, 96 Mass. 499. If courts were to maintain actions upon such grounds, society would soon be converted into an array of hostile litigants. As is well said by Judge Black in Jenkins v. Fowler, 24 Penn., 308: "Malicious motives make a act worse, but they can not make that wrong which in its own essence is lawful. * * * Any transaction which would lawful and proper if the parties are friends can not be made the foundation of an action merely because they happen to enemies. As long as a man keeps himself within the law doing no act which violates, we must leave his motive to Hi who searches the heart."
In Heywood v. Tillson, 75 Me. 225, it is said: "To entitle the plaintiff to recover there must be a wrong done. No one is a wrong doer but he who does what the law does not allow. He who does what the law allows can not be a wrong doer, whatever his motive." "The exercise of a legal right can not be a legal wrong to another." Cooley on Torts, 65; Cotterell v. Jones 73 E. C. L., 713. In Hunt v. Simonds, 19 Mo., 583, it (661) is said: "The act charged upon the defendants as having been done by preconcert was an act which each and every one of the defendants had a right to do, and as no violation any right which the plaintiff could claim under the law. I had no right to demand insurance upon his boat from any all of the defendants, nor that they should insure cargo upon his boat, and consequently their refusal to insure, from any motive, however improper, could give him no right to sue them. The moment it is established that the conspiracy is not a substantial ground of action, it follows that no action can be brought recover damages for the joint set of several unless the right self is alleged." The case of Payne v. W. A. R. R., 13 Lea, 507, 49 Am. Rep., 666, illustrates the principle as seen from the other viewpoint. The agent of the railroad caused to posted by the yardmaster a notice in these words: "Any employee in this company on Chattanooga pay roll who trades with L. Payne from this date will be discharged. Notify men in your department." The plaintiff alleged that he was a merchant, having a large trade with the employees and others; that the act of the defendant was malicious, etc. The defendant demurred. The Court sustained the demurrer in an able opinion, holding that as the act was not unlawful the motive with which it was done did not give a cause of action. The Judge said that any other doctrine would lead to evils innumerable. "It would be incredible that our courts of law should be perverted to trial of the motives of men who confessedly had done no unlawful act. It is suggestive of the days of constructive treason." Phelps v. Nowlen, 72 N.Y. 39. In Richardson v. R. R., 126 N.C. 100, CLARK, J., says: "But upon the plaintiff's own showing, his discharge was within the right of the defendant and not wrongful, and malice disconnected with the infringement of a legal right can not be the subject of an action." The principle is well stated by Bowen, L. J., in Mogul Steamship Co. v. McGregor, 23 Q. B. D., 612: "We were (662) invited by plaintiff's counsel to accept the position from which their argument started — that an action will lie if a man maliciously and wrongfully conducts himself so as to injure another in that other's trade. Obscurity resides in the language used to state this proposition. The terms `maliciously,' `wrongfully' and `injure are words all of which have accurate meanings, well known to the law, but which also have popular and less precise signification, into which it is necessary to see that the argument does not slide. An intent to `injure,' in strictness, means more than an intent to harm. It connotes an intent to do wrongful harm. `Maliciously,' in like manner, means and implies an intention to do an act which is wrongful to the detriment of another. The term `wrongful' imports in its term the infringement of some right." The question as applied to a disturbance of relations between an employer and employed underwent a most exhaustive examination in Allen v. Flood, L.R.A. C., 1, in which the conclusion was reached that "an act lawful in itself is not converted by a malicious or bad motive into an unlawful act so as to make the doer liable." In the later case of Quinn V. Leathem, L.R.A. C. (1901), the same question with some modifying facts was discussed. The reporter says: "Allen v. Flood explained and its real effect stated." An interesting discussion of the question may be found in the Law Quar. Rev., January, 1904. Without undertaking to mark the limitations or exceptions to the general principle, we are of the opinion that the defendants' conduct was not unlawful. That the motive prompting them does not change or affect its legal quality. It is not to be doubted that many acts which subject a party to a civil action, without regard to the motive with which they are committed, are indictable either by the common law or by statute by ;reason of the motive which prompts them. To kill a man's horse is actionable; to do so maliciously is indictable. The act itself is a legal injury. The statute (663) makes it a crime when malice is the moving cause. Many other instances readily occur to the mind. We think that it will be found that in every case where the act is criminal there is a trespass on some legal right or a legal wrong done to the complaining person. We concur with his Honor that no criminal act is charged in the indictment. We have not overlooked the cases cited in the briefs. The courts are very far from agreement in regard to the law of conspiracy. This fact tends to show the danger of giving to the word "unlawful" a broad and all embracing meaning in the definition of a criminal conspiracy. We are told this is a case of great importance. It is said: "We are now at the parting of the ways. It is safe to predict that there will be no more criminal conspiracies, no more demands for union shops and no strikes, sympathetic or otherwise, in this State, if the Court sustains the bill in this case." We are also told by counsel that it rests upon the members of this Court to decide whether labor and capital * * * shall dwell together in peace and unity, controlled by the law, etc. It is desirable that this condition, which has always so happily prevailed in this State, shall be preserved. We are duly sensible of our duty, as Judges, to so declare the law as to secure as far as the law may this condition. As we have endeavored to show, concerted action and association to protect common interests and promote common advantage is not peculiar to those whose capital consists in their labor. The security of the State demands that the same principles of law must apply to all sorts and conditions of men. It is well to consider how far liberty of thought and action may be restricted by a resort to the "loose expressions" and dangerously uncertain definitions of this crime affecting the liberty of the citizens.
It is very doubtful whether industrial conditions, or (664) relations between employers and employees, have been improved by prosecutions for criminal conspiracy. As we have seen, in England, the subject has received the most careful attention of enlightened statement, resulting in the passage of wise statutes. It is asked, may not a man conduct his business in his own way? And undoubtedly he may. For any unlawful interference with this right he has a remedy, either civil or criminal, as such interference may justify. The question is asked, May not men organize to promote their common interests, and when such interests conflict with other interests resort to lawful and peaceful means to secure the best results? It is clear that they may. Where, then, is the line which separates conduct which is lawful from that which is unlawful? The answer comes from Chief Justice Shaw, one of the wisest and most learned of American jurists. "If it is to be carried into effect by fair or honorable or lawful means, it is, to say the least, innocent. If by falsehood or force, it may be stamped with the character of a criminal conspiracy." We would not be misunderstood. Capital, either in the form of money or other property, or in the form of skill, experience, intelligence and strength, may combine for lawful purpose. When in either form, or under whatever guise it seeks or conspires to effectuate its purpose, however lawful, by means, or then by such means it conspires to prevent any person from conduction his own business in his own way, or from employing such persons as he may prefer, or by preventing any person from being employed at such wages or upon such terms as he may prefer, the courts will be prompt to declare and firm to administer the law to punish the guilty and protect the injured. What acts will constitute such unlawful means it is impossible to define. As all other questions arising out of the struggle of political, social or industrial forces, they must be decided as they are presented. (665)
We have refrained from using terms having a popular but as yet indefinite legal meaning. The word "boycott," by reason of the circumstances under which it originated and the extent to which the means used to accomplish the purpose of the parties engaged in it were carried, is commonly supposed to involve unlawful means. The word is defined in Black's Law Dictionary, p. 150, as follows: "In criminal law. A conspiracy formed and intended directly or indirectly to prevent the carrying on of any lawful business, or to injure the business of any one by wrongfully preventing those who would be customers from buying from or employing the representatives of said business by threats, intimidation, or other forcible means." In Brace v. Evans, 3d R. Y. Corp. Law J., 561, it is said: "The word in itself implies a threat in popular acceptation, it is an organized effect to exclude a person from business relations with others by persuasion, intimidation and other acts which tend to violence and have coerced him through fear of his own injury to submit to dictation in the management of his affairs." In Matthews v. Shankland, 56 N.Y.S., 123, the term is held to come within the statutory definition of an "unlawful conspiracy." For history of the word and definition as adopted by many courts, see "Words and Phrases," Vol. 1, page 855. We find nothing in the charge in this case which brings the purpose or conduct of the defendant within such definition. Much obscurity and uncertainty has originated in the careless use of terms of this character.
Mutual confidence, forbearance, patience and concession, accompanied by a free, frank interchange of thought and feeling, will do more to perpetuate the kindly relations existing among us with our homogeneous population than prosecutions for criminal conspiracies, when no criminal or unlawful elements exist. In view of the wide divergence of judicial opinion, (666) by reason whereof the law is oppressed with a distressing uncertainty, it would seem that the Legislature should abrogate the common law on the subject and enact a plain, clearly expressed and carefully guarded statute in lieu thereof. We think it also proper to say in the discussion of this case, we do not mean to suggest that Mr. Rice is unfair to his employees. We have considered the appeal in its legal aspects as presented by the record. His Honor's judgment quashing the indictment must be
Affirmed.