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Several rules upon the subject seem to be well established, to wit, that the unlawful agreement constitutes the gist of the offense, and therefore that it is not necessary to charge the execution of the unlawful agreement. (Commonwealth v. Judd, 2 Mass., 337.) And when such execution is charged it is to be regarded as proof of the intent, or as an aggravation of the criminality of the unlawful combination.
Another rule is a necessary consequence of the former, which is that the crime is consummate and complete by the fact of unlawful combination, and, therefore, that if the execution of the unlawful purpose is averred, it is by way of aggravation, and proof of it is not necessary to conviction; and therefore the jury may find the conspiracy and negative the execution, and it will be a good conviction. And it follows, as another necessary legal consequence, from the same principle, that the indictment must by averring the unlawful purpose of the conspiracy, or the unlawful means by which it is contemplated and agreed to accomplish a lawful purpose, or a purpose not of itself criminally punishableset out an offense complete in itself, without the aid of any averment of illegal acts done in pursuance of such an agreement; and that an illegal combination, imperfectly and insufficiently set out in the indictment, will not be aided by averments of acts done in pursuance of it.
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 to enable the defendant to meet the charge and prepare for his defense, and, in case of 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 also necessary, in order that a person, charged by the grand jury for one offense, may not substantially be convicted on his trial of another. This fundamental rule is confirmed by the Declaration of Rights, which declares that no subject shall be held to answer for any crime or offense until the same is fully and plainly, substantially and formally, described to him.
From these views of the rules of criminal pleading it appears to us to follow, as a necessary legal conclusion, that when the criminality of a conspiracy consists in an unlawful agreement of two or more persons to compass or promote some criminal or illegal purpose, that purpose must be fully and clearly stated in the indictment; and if the criminality of the offense, which is intended to be charged, consists in the agreement to compass or promote some purpose, not of itself criminal or unlawful, by use of fraud, force, falsehood, or other criminal or unlawful means, such intended use of fraud, force, falsehood, or other criminal or unlawful means must be set out in the indictment.
With these general views of the law, it becomes necessary to consider the circumstances of the present case, as they appear from the indictment itself, and from the bill of exceptions filed and allowed.
One of the exceptions, though not the first in the order of time, yet by far the most important, was this:
The counsel for the defendants contended, and requested the court to instruct the jury, that the indictment did not set forth any agreement to do a criminal act, or to do any lawful act by any specified criminal means, and that the agreements therein set forth did not constitute a conspiracy indictable by any law of this Commonwealth. But the judge refused so to do, and instructed the jury that the indictment did, in his opinion, describe a confederacy among the defendants to do an unlawful act, and to effect the same by unlawful means; that the society, organized and associated for the purposes described in the indictment, was an unlawful conspiracy, against the laws of this Commonwealth; and that if the jury believed, from the evidence in the case, that the defendants, or any of them, had engaged in such a confederacy, they were bound to find such of them guilty.
We are here carefully to distinguish between the confederacy set forth in the indictment and the confederacy or association contained in the constitution of the Boston Journeymen Bootmakers' Society, as stated in the little printed book which was admitted as evidence on the trial. Because, though it was thus admitted as evidence, it would not warrant a conviction for anything not stated in the indictment. It was proof as far as it went to support the everments in the indictment. If it contained any criminal matter not set forth in the indictment it is of no avail. The question then presents itself in the same form as on a motion in arrest of judgment.
The first count set forth that the defendants, with divers others unknown, on the day and at the place named, being workmen, and journeymen, in the art and occupation of bootmakers, unlawfully, perniciously, and deceitfully designing and intending to continue, keep up, form, and unite themselves into an unlawful club, society, and combination, and make unlawful by-laws, rules, and orders amor themselves, and thereby govern themselves and other workmen in the said art, and unlawfully and unjustly to extort great sums of money by neans thereof, did unlawfully assemble and meet together, and being so assembled did unjustly and corruptly conspire, combine, confederate, and agree together that none of them should thereafter, and that none of them would, work for any master or person whatsoever in the said art, mystery, and occupation who should employ any workmen or journeymen, or other person in the said art who was not a member of caid club, society, or combination after notice given him to discharge such workman from the employ of such master, to the great damage and oppression, etc.
Now it is to be considered, that the preamble and introductory matter in the indictment, such as unlawfully and 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 the 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 and oppression not only of their said masters, employing them in said art and occupation, but also of divers other workmen in the same art, mystery, and occupation, to the evil example, etc. If the facts averred constitute a crime, these are properly stated as the legal inference to be drawn from them. If they do not constitute the charge of such an offense, they can not be aided by these alleged consequences.
Stripped, then, of these introductory recitals and alleged injurious consequences and of the qualifying epithets attached to the facts, the averment is this, that the defendants and others formed themselves into a society and agreed not to work for any person who should employ any journeyman or other person, not a member of such society, after notice given him to discharge such workman.
The manifest intent of the association is to induce all those engaged
in the same occupation to become members of it. Such a purpose is not unlawful. It would give them a power which might be exerted for useful and honorable purposes or for dangerous and pernicious ones. If the latter were the real and actual object and susceptible of proof, it should have been specially charged. Such an association might be used to afford each other assistance in times of poverty, sickness, and distress, or to raise their intellectual, moral, and social condition, or to make improvement in their art, or for other proper purposes. Or the association might be designed for purposes of oppression and injustice. But in order to charge all those who become members of an association with the guilt of a criminal conspiracy, it must be averred and proved that the actual, if not the avowed, object of the association was criminal. An association may be formed the declared objects of which are innocent and laudable, and yet they may have secret articles or an agreement communicated only to the members, by which they are banded together for purposes injurious to the peace of society or the rights of its members. Such would undoubtedly be a criminal conspiracy on proof of the fact, however meritorious and praiseworthy the declared objects might be. The law is not to be hoodwinked by colorable pretenses. It looks at truth and reality, through whatever disguise it may assume. But to make such an association, ostensibly innocent, the subject of prosecution as a criminal conspiracy, the secret agreement which makes it so is to be averred and proved as the gist of the offense. But when an association is formed for purposes actually innocent and afterwards its powers are abused by those who have control and management of it to purposes of oppression and injustice, it will be criminal in those who thus misuse it or give consent thereto, but not in the other members of the association. In this case no such secret agreement, varying the objects of the association from those avowed, is set forth in this count of the indictment.
Nor can we perceive that the objects of this association, whatever they may have been, were to be attained by criminal means. The means which they proposed to employ, as averred in this count and which, as we are now to presume, were established by the proof, were that they would not work for a person who, after due notice, should employ a journeyman not a member of their society. Supposing the object of the association to be laudable and lawful, or at least not unlawful, are these means criminal? The case supposes that these persons are not bound by contract, but free to work for whom they please, or not to work if they so prefer. In this state of things we can not perceive that it is criminal for men to agree together to exercise their own acknowledged rights in such a manner as best to subserve their own interests. One way to test this is to consider the effect of such an agreement where the object of the association is acknowledged on all hands to be a laudable one. Suppose a class of workmen, impressed with the manifold evils of intemperance, should agree with each other not to work in a shop in which ardent spirit was furnished, or not to work in a shop with anyone who used it, or noto work for an employer who should, after notice, employ a journeyman who habitually used it. The consequences might be the same. A workman who should still persist in the use of ardent spirit would find it more difficult to get employment; a master employing such an one might at times experience inconvenience in his work in losing the services of a skillful but intemperate workman. Still, it seems to us that as the object would be lawful, and the means not unlawful, such an agreement could not be pronounced a criminal conspiracy.
From this count in the indictment, we do not understand that the agreement was that the defendants would refuse to work for an employer to whom they were bound by contract for a certain time, in violation of that contract; nor that they would insist tbut an employer should discharge a workman engaged by contract for a certain time, in violation of such contract. It is perfectly consistent with everything stated in this count that the effect of the agreement was, that when they were free to act, they would not engage with an employer or continue in his employment, if such employer, when free to act, should engage with a workman, or continue a workman in his employment, not a member of the association. If a large number of men, engaged for a certain time, should combine together to violate their contract, and quit their employment together, it would present a very different question. Suppose a farmer, employing a large number of men, engaged for the year, at fair monthly wages, and suppose that just at the moment that his crops were ready to harvest, they should all combine to quit his service, unless he would advance their wages, at a time when other laborers could not be obtained. It would surely be a conspiracy to do an unlawful act, though of such a character that if done by an individual, it would lay the foundation of a civil action only, and not of a criminal prosecution. It would be a case very different from that stated in this count.
The second count, omitting the recital of unlawful intent and evil disposition, and omitting the direct averment of an unlawful club or society, alleges that “the defendants, with others unknown, did assemble, conspire, confederate, and agree together not to work for any master or person who should employ any workman not being a member of a certain club, society, or combination called the Boston Journeymen Bootmakers' Society, or who should break any of their by-laws, unless such workmen should pay to said club such sum as should be agreed upon as a penalty for the breach of such unlawful rules, etc.; and that by means of said conspiracy they did compel one Isaac B. Wait, a master cordwainer, to turn out of his employ one Jeremiah Horne, a journeyman bootmaker, etc., in evil example," etc.
So far as the averment of a conspiracy is concerned, all the remarks made in reference to the first count are equally applicable to this. It is simply an averment of an agreement amongst themselves not to work for a person who should employ any person not a member of a certain association. It sets forth no illegal or criminal purpose to be accomplished, nor any illegal or criminal means to be adopted for the accomplishment of any purpose. It was an agreement as to the manner in which they would exercise an acknowledged right to contract with others for their labor. It does not aver a conspiracy, or even an intention to raise their wages; and it appears by the bill of exceptions that the case was not put upon the footing of a conspiracy to raise their wages. Such an agreement as set forth in this count would be perfectly justifiable under the recent English statute, by which this subject is regulated. (St. 6 Geo. IV, c. 129. See Roscoe Crim. Ev., 2d Amer. ed., 368, 369.)
As to the latter part of this count, which avers that by means of said conspiracy the defendants did compel one Wait to turn out of his employ one Jeremiah Horne, we remark, in the first place, that as the acts done in pursuance of a conspiracy, as we have before seen, are stated by way of aggravation and not as a substantive charge, if no criminal or unlawful conspiracy is stated, it can not be aided and made good by mere matter of aggravation. If the principal charge falls, the aggravation falls with it. (State v. Rickey, 4 Halst., 293.) But, further, if this is to be co isidered as a substantive charge it would depend altogether upon the force of the word “compel,” which may be lised in the sense of coercion, or duress, by force or fraud. It would therefore depend upon the context, and the connection with other words, to determine the sense in which it was used in the indictment. If, for instance, the indictment had averred a conspiracy by the defendants to compel Wait to turn Horne out of his employment, and to accomplish that object by the use of force or fraud, it would have been a very different case; especially if it might be fairly construed, as perhaps in that case it might have been, that Wait was under obligation, by contract, for an unexpired term of time, to employ and pay Horne. As before remarked, it would have been a conspiracy to do an unlawful, though not a criminal, act, to induce Wait to violate his engagement to the actual injury of Horne.
To mark the difference between the case of a journeyman or a seryant and master, mutually bound by contract, and the same parties when free to engage anew, I should have before cited the case of the Boston Glass Company v. Binney (4 Pick., 425). In that case it was held actionable to entice another person's hired servant to quit his employment during the time for which he was engaged; but not actionable to treat with such hired servant, whilst actually hired and employed by another, to leave his service, and engage in the employment of the person making the proposal when the term for which he is engaged shall expire. It acknowledges the established principle, that every free man, whether skilled laborer, mechanic, farmer, or domestic servant, may work or not work, or work or refuse to work with any company or individual, at his own option, except so far as he is bound by contract. But whatever might be the force of the word “compel," unexplained by its connection, it is disarmed and rendered harmless by the precise statement of the means by which such compulsion was to be effected. It was the agreement not to work for him, by which they compelled Wait to decline employing Horne longer. On both of these grounds we are of opinion that the statement made in this second count, that the unlawful agreement was carried into execution, makes no essential difference between this and the first count.
The third count, reciting a wicked and unlawful intent" to impoverish one Jeremiah Horne, and hinder him from following his trade as a bootmaker, charges the defendants, with others unknown, with an unlawful conspiracy, by wrongful and indirect means, to impoverish said Horne and to deprive and hinder him from his said art and trade and getting his support thereby, and that, in pursuance of said unlawful combination, they did unlawfully and indirectly hinder and prevent, etc., and greatly impoverish,” etc.
If the fact of depriving Jeremiah Horne of the profits of his business, by whatever means it might be done, would be unlawful and criminal, a combination to compass that object would be an unlawful conspiracy, and it would be unnecessary to state the means. Such seems to have been the view of the court in The King v. Eccles (3 Doug., 337), though