Mr. William Wallace, Assistant Attor- both may be furnished by the same single ney General, for plaintiff in error: happening. Where the substantive offense requires combination for its commission, the same combination cannot be also used as the basis of a conspiracy charge; i. e., the prosecutor may not split the substantive offense into elements and frame an indictment on State v. Crofford, 133 Iowa, 480, 110 N. The later consummation of the main of- one element. But where the substantivepleted crime of conspiracy. Chadwick v. United States, 72 C. C. A. 343, 141 Fed. 236; United States v. New York C. & H. R. R. Co. 146 Fed. 303; Ex parte Lyman, 202 Fed. 303; Reg. v. Whitchurch, L. R. 24 Q. B. Div. 420, 59 L. J. Mag. Cas. N. S. 77, 62 L. T. N. S. 124, 38 Week. Rep. 336, 16 Cox, C. C. 743, 54 J. P. 472, 8 Am. Crim. Rep. 1; State v. Crofford, 133 Iowa, 478, 110 N. W. 921. Guilty complicity on the part of the woman transported is not a necessary ingredient of the substantive offense. Hoke v. United States, 227 U. S. 320, 57 L. ed. 526, 43 L.R.A. (N.S.) 906, 33 Sup. Ct. Rep. 281, Ann. Cas. 1913E, 905; Bennett v. United States, 114 C. C. A. 402, 194 Fed. 630, affirmed in 227 U. S. 333, 57 L. ed. 531, 33 Sup. Ct. Rep. 288; United States v. Westman, 182 Fed. 1017. If the act prohibited by each statute demands for its accomplishment the doing of the same things, then there is legal identity. If, however, any element is demanded by either that is not essential to the other, then they are separately punishable as different offenses, even though the elements of the law to be that the "woman always is the victim," then its one illustration has no force, or at least it is not of sufficient force to overcome the arguments and facts produced by the minority. Secondly, the minority say that the woman had to be considered an object of traffic in interstate commerce in order to sustain the constitutionality of the statute (see Hoke v. United States, 43 L.R.A.(N.S.) 906, note), hence Congress has no jurisdiction to punish her on the theory that she is not an object of traffic, but a free agent responsible for her own transportation. There is no comment by the majority on this point. To summarize what has been said, supra, it may be added: (1) If the premise of the minority (that the statute was passed upon the theory that the woman is the victim) is conceded, their conclusion seems to be irresistible. It matters not whether the theory is an illusion or not if Congress based the statute upon it, for in that case the courts cannot abandon it. (2) The majority produced no argument that in any Heike v. United States, 227 U. S. 131, 144, 57 L. ed. 450, 455, 33 Sup. Ct. Rep. 226, Ann. Cas. 1914C, 128; Curley v. United States, 64 C. C. A. 369, 130 Fed. 1; United States v. Stamatopoulos, 164 Fed. 524; Solander v. People, 2 Colo. 48; State v. Crofford, 133 Iowa, 478, 110 N. W. 921. Though the penalty provisions of the crime punished by § 2 were limited exclusively to procurers, no corresponding limitation is to be found in § 37, which, being aimed at every person, must apply to the defendant Holte. United States v. Portale, 235 U. S. 27, 59 L. ed., 35 Sup. Ct. Rep. 1; United States v. Lewis, 235 U. S. 282, 59 L. ed. —, 35 Sup. Ct. Rep. 44. No appearance for defendant in error. Mr. Justice Holmes delivered the opinion of the court: This is an indictment for a conspiracy between the present defendant and one Laudenschleger that Laudenschleger should cause the defendant to be transported from Illinois to Wisconsin for the purpose of prostitution, contrary to the act of June 25, 1910, chap. 395, 36 Stat. at L. 825, Comp. Stat. 1913, § 8812. As the defendant is the woman, the district court sustained a demurrer on the ground that although the offense could not be committed way overthrows the premise of the minority. The fact that individual cases arise in which the woman is not the victim does not disprove the statement that Congress based the law upon the theory that the woman is the victim, any more than it proves that the state legislature did not pass the statutory rape act on the theory that the girl is the victim. The minority produced some very convincing arguments in support of their premise. It is to be regretted that the majority did not attack these arguments and show that Congress did not act upon the theory that the woman is the victim. In this way only could they logically avoid the conclusion of the minority. In the dissenting opinion it is also timely suggested that the holding by the majority will likely hamper the government in prosecutions in the matter of introducing evidence, the woman transported now being able to refuse to testify on the ground that she may incriminate herself. J. W. M. without her, she was no party to it, but only the victim. The single question is whether that ruling is right. We do not have to consider what would be necessary to constitute the substantive crime under the act of 1910, or what evidence would be required to convict a woman under an indictment like this; but only to decide whether it is impossible for the transported woman to be guilty of a crime in conspiring as alleged. The words of the Penal Code of March 4, 1909, chap. 321, § 37 [35 Stat. at L. 1096, Comp. Stat. 1913, § 10,201], are "conspire to commit any offense against the United States;" and the argument is that they mean an offense that all the conspirators could commit; and that the woman could not commit the offense alleged to be the object of the conspiracy. For although the statute of 1910 embraces matters to which she could be a party, if the words are taken literally, for instance, aiding in procuring any form of transportation for the purpose, the conspiracy alleged, as we have said, is a conspiracy that Laudenschleger should procure transportation and should cause the woman to be transported. Of course, the words of the Penal Code could be narrowed as we have suggested, but in that case they would not be as broad as the mischief; and we think it plain that they mean to adopt the common law as to conspiracy, and that "commit" means no more than bring about. For, as was observed in Drew v. Thaw (Dec. 21, 1914) [235 U. S. 432, 59 L. ed., 35 Sup. Ct. Rep. 137], a conspiracy to accomplish what an individual is free to do may be a crime (Reg. v. Mears, 4 Cox, C. C. 423, 2 Den. C. C. 79, Temple & M. 414, 20 L. J. Mag. Cas. N. S. 59, 15 Jur. 66; Reg. v. Howell, 4 Fost. & F. 160); and even more plainly a person may conspire for the commission of a crime by a third person. We will assume that there may be a degree of co-operation that would not amount to a crime, as where it was held that a purchase of spirituous liquor from an unlicensed vendor was not a crime in the purchaser, although it was in the seller. Com. v. Willard, 22 Pick. 476. But a conspiracy with an officer or employee of the government or any other for an offense that only he could commit has been held for many years to fall within the conspiracy section, now § 37, of the Penal Code. United States v. Martin, 4 Cliff. 156, 164, Fed. Cas. No. 15,728; United States v. Bayer, 4 Dill. 407, 410, Fed. Cas. No. 14,547; United States v. Stevens, 44 Fed. 132, 140; State ex rel. Durner v. Huegin, 110 Wis. 189, 246, 62 L.R.A. 700, 85 N. W. 1046, 15 Am. Crim. Rep. 332. So a woman may conspire to procure an abor tion upon herself when, under the law, she could not commit the substantive crime; and therefore, it has been held could not be an accomplice. Reg. v. Whitchurch, L. R. 24 Q. B. Div. 420, 422, 59 L. J. Mag. Cas. N. S. 77, 62 L. T. N. S. 124, 38 Week. Rep. 336, 16 Cox, C. C. 743, 54 J. P. 472, 8 Am. Crim. Rep. 1; Solander v. People, 2 Colo. 48, 63; State v. Crofford, 133 Iowa, 478, 480, 110 N. W. 921. So we think that it would be going too far to say that the defendant could not be guilty in this case. Suppose, for instance, that a professional prostitute, as well able to look out for herself as was the man, should suggest and carry out a journey within the act of 1910 in the hope of blackmailing the man, and should buy the railroad tickets, or should pay the fare from Jersey City to New York,-she would be within the letter of the act of 1910, and we see no reason why the act should not be held to apply. We see equally little reason for not treating the preliminary agreement as a conspiracy that the law can reach, if we abandon the illusion that the woman always is the victim. The words of the statute punish the transportation of a woman for the purpose of prostitution even if she were the first to suggest the crime. The substantive offense might be committed without the woman's consent; for instance, if she were drugged or taken by force. Therefore the decisions that it is impossible to turn the concurrence necessary to effect certain crimes such as bigamy or duelling into a conspiracy to commit them do not apply. Judgment reversed. Mr. Justice McReynolds took no part in the consideration and decision of this case. Mr. Justice Lamar, dissenting: I dissent from the conclusion that a woman can be guilty of conspiring to have herself unlawfully transported in interstate commerce for purposes of prostitution. Congress had no power to punish immorality, and certainty did not intend by this act of June 25, 1910 (36 Stat. at L. 825, chap. 395, Comp. Stat. 1913, § 8812), to make fornication or adultery, which was a state misdemeanor, a Federal felony, punishable by $5,000 fine and five years' imprisonment. But when it appeared that there was a traffic in women to be used for purposes of prostitution, debauchery, and immoral purposes, Congress legislated so as to prohibit their interstate transportation in such vicious business. That there was such traffic in women and girls; that they were "literally slaves," "owned and held as property and chattels," and that their traf-, duced, whether willingly or unwillingly fickers made large profits, is set out at length in the Reports of the House and Senate Committees (61st Congress, 2d Session), recommending the passage of the bill. So that an argument based on the use of the word "slave," "enslaved," "traffic in women," "business in women," "subject of transportation," and the like,-which might otherwise appear to be strained, is amply justified by the amazing facts which those reports show as to the existence and extent of the business and the profits made by the traffickers in women. The argument based on the use of these words, and what they imply, is further justified by the fact that the statute itself declares (§ 8) that it shall be known as the "white slave traffic act." In giving itself such a title the statute specifically indicates that, while of right, woman is not an object of merchandise or traffic, yet for gain she has by some been wrongfully made such for purposes of prostitution; and that trade Congress intended to bar from interstate commerce. The act either applies to women who are willingly transported, or it does not. If it does not apply to those who willingly go (47 H. R. 61st Cong. 2d Session, p. 10), then there was no offense by the man who transported her, or in the woman who voluntarily went,-and, in that event, there was, of course, no conspiracy against the laws of the United States in her agreeing transported for purposes of prostitution, debauchery, and immorality, is regarded as the victim of the trafficker, and she cannot therefore be punished for being enslaved, nor for consenting and agreeing to be transported by him for purposes of such business. To hold otherwise would make the law of conspiracy a sword with which to punish those whom the traffic act was intended to protect. The fact that prostitutes and others have used this statute as a means by which to levy blackmail may furnish a reason why that should be made a Federal offense, so that she and they can be punished for blackmail or malicious prosecution. But those evils are not to be remedied by extending the law of conspiracy so as to treat the enslaved subject of transportation as a guilty actor in her own transportation; and then punish her because she agreed with her slaver to be shipped in interstate commerce for purposes of prostitution. Such a construction would make every willing victim indictable for conspiracy. Even that elastic offense cannot be extended to cover such a case. There are no decisions dealing directly with the question as to whether a woman assisting in her own illegal transportation can be prosecuted for conspiracy. There are, however, a number of authorities dealing with somewhat analogous subjects. For example, in prosecutions for abortion, the woman "does not stand legally in the situation of an accomplice, for although she no doubt participated in the moral offense im to go. The indictment here, however, as sumes that the act applies not only to those who are induced to go, but also to those who aid the panderer in securing their own transportation. On that assump-puted to the defendant, she could not have tion, every woman transported for the purposes of the business stands on the same footing, and cannot by her consent change her legal status. And if she cannot be directly punished for being transported, she cannot be indirectly punished by calling her assistance in the transportation a conspiracy to violate the laws of the United States. For if she is within the circle of the statute's protection, she cannot be taken out of that circle by the law of conspiracy, and thus be subjected to punishment because she agreed to go. been indicted for that offense. The law regards her as the victim rather than the perpetrator." Dunn v. People, 29 N. Y. 523, 86 Am. Dec. 319; Com. v. Wood, 11 Gray, 86; State v. Hyer, 39 N. J. L. 598; State v. Murphy, 27 N. J. L. 114; Com. v. Follansbee, 155 Mass. 274, 29 N. E. 471; State v. Owens, 22 Minn. 244; Watson v. State, 9 Tex. App. 238; Keller v. State, 102 Ga. 510, 31 S. E. 92 (seduction). Contra apparently in England and Colorado. Reg. v. Whitchurch, L. R. 24 Q. B. Div. 240, 59 L. J. Mag. Cas. N. S. 77, 62 L. T. N. S. 124, 38 The statute does not deal with the offense Week. Rep. 336, 16 Cox, C. C. 743, 54 J. P. of fornication and adultery, but treats the 472, 8 Am. Crim. Rep. 1; Solander v. Peowoman who is transported for use in the ple, 2 Colo. 48. So, too, a person who business of prostitution as a victim,—often knowingly purchases liquor from one una willing victim, but nevertheless a victim. authorized to sell it is not guilty of a crimiIt treats her as enslaved. and seeks to nal offense and is not an accomplice. State guard her against herself as well as against v. Teahan, 50 Conn. 100; Com. v. Pillsbury, her slaver; against the wiles and threats, 12 Gray, 127; People v. Smith, 28 Hun, 626, the compulsion and inducements, of those affirmed on opinion below, 92 N. Y. 665; who treat her as though she was merchan- State v. Baden, 37 Minn. 212, 34 N. W. 24. dise and a subject of interstate transpor- Where the purchaser of liquor sold in tation. The woman, whether coerced or in-violation of law was prosecuted for induc ing the seller to commit a crime, the court said: "Every sale implies a purchaser; there must be a purchaser as well as a seller, and this must have been known and understood by the legislature. Now, if it were intended that the purchaser should be subject to any penalty, it is to be presumed that it would have been declared in the statute, either by imposing a penalty on the buyer in terms, or by extending the penal consequences of the prohibited act to all persons aiding, counseling, or encouraging the principal offender. There being no such provision in the statute, there is a strong implication that none such was intended by the legislature." Com. v. Willard, 22 Pick. 479. ute, there is a strong implication that none such was intended by the legislature." To this may be added the practical consideration, that any construction making the woman liable for participation in the transportation will not only tend to prevent her from coming forward with her evidence, but in many instances she will be in position to claim her privilege and can refuse to testify on the ground that she might thereby subject herself to prosecution for conspiracy, in that she aided in the violation of the law, even though it was intended for the protection of her unfortu nate class. The woman, whether treated as the willing or an unwilling victim of such transportation for such business purpose, cannot be found guilty of the main offense, nor punished for the incidental act of conspiring to be enslaved and transported. Indeed, if she could be so punished for conspiring with her slaver, the fundamental idea that makes the act valid would be destroyed. She would cease to be an object of traffic; and instead of being the subject of illegal trans United States v. Dietrich, 126 Fed. 667, though not directly in point, sheds light on the subject. There two persons were indicted under Rev. Stat. § 5440, for conspiring to violate that law of the United States (Rev. Stat. § 1781) which makes it a criminal offense to agree to give or to receive a bribe. The court held that agreeing to give or receive a bribe was the substantive of-portation would-not be transported by a fense, and not a conspiracy. For when an offense, as bigamy or adultery, requires for its completion the concurrence of two persons, "the government cannot evade the limitations by indicting as for a conspiracy." And in Reg. v. Tyrrell [1894] 1 Q. B. 711, 63 L. J. Mag. Cas. N. S. 58, 10 Reports, 82, 70 L. T. N. S. 41, 42 Week. Rep. 255, 17 Cox, C. C. 716, where a girl under fifteen years of age was prosecuted for inciting a man to commit adultery with her, one of the judges considered that she could not be found guilty because she was under the age of consent, and the other said that the statute did not apply because "there is no trace in the statute of any intention to treat the woman or girls as criminals." slaver as an object of interstate commerce, so as to be subject to regulative prohibitions under the commerce clause-but would be voluntarily traveling on her own account, and punishable by the laws of the state for prostitution practised after her arrival. I am authorized to say that Mr. Justice Day concurs in this dissent. WASHINGTON SUPREME COURT. (Department No. 1.) STATE OF WASHINGTON EX REL. W. L. V. R. E. BUCKLIN et al. (- Wash. 145 Pac. 58.) Corporation right to inspect books benefit of rival. holds stock in a rival corporation, and deThat a stockholder of a corporation also sires to inspect its books to enable him to ascertain its prices and customers, so that Note. As to right of stockholder to in Applying these cases, it appears that under the white slave traffic act there must be a woman who is transported and a person who compels or induces her to be transported, or who aids her in such transportation. "There is no trace in the statute of any intention to treat the women or girls as criminals" for being transported, nor for agreeing that they will be transported, nor for aiding in the transportation. And if, spect bocks of the corporation, see notes to as said in Com. v. Willard, 22 Pick, 479, Weihenmayer v. Bitner, 45 L.R.A. 446; Congress had intended that they should be Kuhback v. Irving Cut Glass Co. 20 L.R.A. subject to indictment for conspiracy, "it (N.S.) 185: State ex rel. Brumley v. Jeswould have been declared by ex- sup & M. Paper Co. 30 L.R.A. (N.S.) 290, tending the penal consequences of the pro- and White v. Manter, 42 L.R.A. (N.S.) 332; hibited act to all persons aiding, counsel- meda Consol. Mines Co. 48 L.R.A. (N.S.) see also subsequent cases, Davidson v. Aling, or encouraging the principal offender. 847, and State ex rel. Aultman v. Ice, post, There being no such provision in the stat-288. the rival may underbid it and discredit its work to its customers, does not deprive him of the benefit of a by-law entitling each stockholder to inspect the books and records of the corporation at any time during business hours. (December 28, 1914.) of said company, together with the prices quoted to the same for the making of abstracts, so that he may solicit such customoperated by himself and to quote prices beers for patronage for the rival company low the cost of making such abstracts so as to deprive the Kitsap Title Abstract Company from the patronage of such cusPPEAL by relators from a judgment of tomers; likewise, the said Gwinn would the Superior County for Kitsap Coun- make use of said information for the purty in favor of respondents in a mandamus pose of discrediting the work of said Kitproceeding to compel them to permit re-sap Title Abstract Company, in so far as lators to examine the books and records of it would be possible for him so to do, and a corporation in which they are stockholders. Reversed. A The facts are stated in the opinion. particularly discredit the management and control of said business by the respondents Bucklin and Landolt." We assume for argument's sake that this allegation and the facts above stated are Parker, J., delivered the opinion of the true, in so far as such facts may be relevant court: The relators, W. L. Gwinn and R. L. Thomas, stockholders of the Kitsap Title Abstract Company, seek by mandamus proceedings to compel the respondents R. E. Bucklin and E. A. Landolt, the president and secretary, respectively, of that company, to permit the relators to examine the books and records of the company. Upon a hearing had in the superior court, judgment was rendered denying the relief prayed for and dismissing the action. From this ruling and judgment, relators have appealed to this court. and controlling in this controversy. This constitutes as favorable a statement as can be made from the record, in respondents' behalf. Counsel for appellants contend that they have the absolute right to examine the books and records of the company without such right being impaired in the least by respondents' claim of right to inquire into relators' motive and purpose in making such examination. We have no statute in this state bearing upon this subject, but the Kitsap Title Abstract Company has a by-law reading as follows: "Each stockholder shall have the right to inspect the books and records of the company at any time during regular business hours of said company." We are not here concerned with the mere common-law right of stockholders to examine the books and records of the corporaThe Kitsap Title Abstract Company is a tion in which they hold stock, which right corporation organized and existing under is not absolute, but subject to restrictions the laws of this state, having its capital governed largely by the circumstances of stock divided into 1,000 shares. Relators each particular controversy. The nature own 497 shares, respondents own 502 and extent of such common-law right was shares, and a third person owns 1 share reviewed by this court in State ex rel. of the stock of the company. Respondents | Weinberg v. Pacific Brewing & Malting Co. are president and secretary, respectively, 21 Wash. 451, 47 L.R.A. 208, 58 Pac. 584. of the company. They have the custody of its books and records and the active management of its business. They are willing | to accord to relators the privilege of examining the books and records of the company except such books and records as show the list of the customers of the company and the particular prices paid by them for abstracts. Respondents insist that these particular books and records of the company constitute a portion of the good will and trade of the company and are such trade secrets that if made known to relators, who are proprietors of a rival In Johnson v. Langdon, 135 Cal. 624, 87 abstract company in competition with the Am. St. Rep. 156, 67 Pac. 1050, the court Kitsap Title Abstract Company, such had under consideration the claimed right knowledge by relators will result to the of the stockholder to examine the books and material injury of the business of the Kit- records of a corporation in which he held sap Title Abstract Company. In this con- stock, under a statute of California pronection respondents allege: "That the only viding that such records shall "be open to purpose of said W. L. Gwinn in seeking the the inspection of any director, member, examination of the books of said company stockholder," etc. The secretary of the corhas been to obtain the list of customersporation, in resisting the stockholders' claim This by-law, we think, has all the force and effect of a statute containing such a provision. Cummings v. Webster, 43 Me. 192; Wyoming Coal Min. Co. v. State, 15 Wyo. 97, 123 Am. St. Rep. 1014, 87 Pac. 337, 984; 10 Cyc. 351. |