CONSPIRACY-COMBINATIONS AMONG WORKMEN. COMMONWEALTH V. HUNT. [4 Metc. 111; 38 Am. Dec. 347.] In the Supreme Judicial Court of Massachusetts, March, 1842. The General Rules of the Common Law making conspiracy an indictable offense were used and approved in Massachusetts before the adoption of its Constitution, and are, therefore, in force here; but the English statutes regulating the settlement of paupers and the wages of laborers and making it penal for any one to engage in a trade to which he had not served a full apprenticeship, not being adapted to our colonial condition, were not adopted or approved and are not, therefore, in force here. 2. An Indictable 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 or unlawful means. 3. An Unlawful Agreement is the Gist of the offense of conspiracy, and it is, therefore, unnecessary to charge the execution of such agreement. The execution is merely proof of the intent or an aggravation of the criminality of the unlawful combination. 4. Where Criminality of Conspiracy consists of 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 charged consists in the agreement to compass or promote some purpose, not of itself criminal or unlawful, by the use of criminal or unlawful means, such means must be set out in the indictment. 5. An Imperfect Averment, in an Indictment of Facts constituting description of the offense, is not aided by the introductory matter therein, nor by the qualifying epithets attached to the facts, nor by the alleged injurious consequences of such facts. 6. The Purpose of a Society Organized under an agreement 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, is not unlawful. 7. When an Association is Formed for innocent purposes and its powers are afterwards abused by those who have the management of it, to purposes of oppression and injustice, those guilty of such abuse and those who consent thereto will be criminally liable, but not the other members of the association. 8. When the Objects of a Society are Lawful it is not unlawful to seek to attain those objects by refusing to work for any one who shall employ a journeyman not a member of such society. 9. An Association Seeking to Attain its Ends by means tending to impoverish others, that is, to lessen their gains and profits, is lawful or unlawful, according as such means are lawful or unlawful. INDICTMENT for conspiracy. The facts appear from the opinion. Austin, Attorney-General, for the Commonwealth. SHAW, C. J. Considerable time has elapsed since the argument of this case. It has been retained long under advisement, partly because we were desirous of examining with some attention the great number of cases cited at the argument, and others which have presented themselves in course, and partly because we considered it a question of great importance to the Commonwealth, and one which had been much examined and considered by the learned judge of the municipal court. We have no doubt that by the operation of the Constitution of this Commonwealth the general rules of the common law, making conspiracy an indictable offense, are in force here, and that this is included in the description of laws which had, before the adoption of the Constitution, been used and approved in the province, colony, or State of Massachusetts Bay, and usually practiced in the courts of law. It was so held in Commonwealth v. Boynton and Commonwealth v. Pierpont, cases decided before reports of cases were regularly published, and in many cases since.2 Still, it is proper in this connection to remark that although the common law in regard to conspiracy in this Commonwealth is in force, yet it will not necessarily follow that every indictment at common law for this offense is a precedent for a similar indictment in this State. The general rule of the common law is that it is a criminal and indictable offense for two or more to confederate and combine together by concerted means, to do that which is unlawful or criminal, to the injury of the public or portions or classes of the community, or even to the rights of an individual. This rule of law may be equally in force as a rule of the common law in England and in this Commonwealth; and yet it must depend upon the local laws of each country to determine whether the purpose to be accomplished by the combination or the concerted means of accomplishing it, be unlawful or criminal in the respective countries. All those laws of the parent country, whether rules of the common law or early English statutes which were made for the purpose of regulating the wages of laborers, the settlement of paupers, and making it penal for any one to use a trade or handicraft to which he had not served a full apprenticeship-not being adapted to the circumstances of our colonial condition - were not adopted, used or approved, and therefore do not come within the description of the laws adopted and confirmed by the provision of the Constitution already cited. This consideration will do something towards reconciling the English and American cases, and may indicate how far the principles of the English cases will apply in this Commonwealth, and show why a conviction in England in many cases would not be a precedent for a like conviction here. The King v. Journeymen Tailors of Cambridge,3 for instance, is commonly cited as an authority for an indictment at common law, and a conviction of journeymen mechanics of a conspiracy to raise their wages. It was there held that the indictment need not conclude contra forman statuti, because the gist of the offense was the conspiracy, which was an offense 1 Const. of Mass., ch. 6, sec. 6. 2 Commonwealth v. Ward, 1 Mass. 473; Commonwealth v. Judd, 3 Am. Dec. 54, and Commonwealth v. Tibbetts, 2 Id. 329, 536; at common law. At the same time it was conceded that the unlawful object to be accomplished was the raising of wages above the rate fixed by a general act of Parliament. It was therefore conspiracy to violate a general statute law, made for the regulation of a large branch of trade affecting the comfort and interest of the public; and thus the object to be accomplished by the conspiracy was unlawful, if not criminal. But the rule of law that an illegal conspiracy, whatever may be the facts which constitute it, is an offense punishable by the laws of this Commonwealth, is established as well by legislative as by judicial authority. Like many other cases, that of murder, for instance, it leaves the definition or description of the offense to the common law, and provides modes for its prosecution and punishment. The Revised Statutes,1 allowed an appeal from the Court of Common Pleas and the Municipal Court, respectively in cases of a conviction for a conspiracy, and thereby recognized it as one of the class of offenses so difficult of investigation or so aggravated in their nature and punishment as to render it fit that the party accused should have the benefit of a trial before the highest court of the Commonwealth. And though this right of appeal is since taken away by the statute of 1839,2 this does not diminish the force of the evidence tending to show that the offense is known and recognized by the Legislature as a high indictable offense. But the great difficulty is in framing any definition or description to be drawn from the decided cases which shall specifically identify this offense; a description broad enough to include all cases punishable under this description, without including acts which are not punishable. Without attempting to review and reconcile all the cases, we are of opinion that as a general description, though perhaps not a precise and 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 or unlawful means. We use the terms criminal or unlawful, because it is manifest that many acts are unlawful which are not punishable by indictment or other public prosecution and yet there no doubt, we think, that a combination by members to do them would be an unlawful conspiracy and punishable by indictment. Of this character was a conspiracy to cheat by false pretenses without false tokens, when a cheat by false pretenses only by a single person was not a punishable offense.3 So a combination to destroy the reputation of an individual, by verbal calumny, which is not indictable. So a conspiracy to induce and persuade a young female, by false 1 ch. 82, sec. 28; ch. 86, sec 10. 2 ch. 161. 3 Commonwealth v. Boynton, before referred to. representation, to leave the protection of her parent's house, with a view to facilitate her prostitution.1 But yet it is clear that it is not every combination to do unlawful acts to the prejudice of another by a conceited action which is punishable as conspiracy. Such was the case of The King v. Turner,2 which was a combination to commit a trespass on the land of another, though alleged to be with force, and by striking terror by carrying offensive weapons in the night. The conclusion to which Mr. Chitty comes in his elaborate work on Criminal Law,3 after an enumeration of the leading authorities, is, that " we can rest, therefore, only on the individual cases decided, which depend in general on particular circumstances, and which are not to be extended." The American cases are not much more satisfactory. The leading one is that of Lambert v. People of New York. On the principal point the Court of Errors were equally divided, and the case was decided in favor of the plaintiff in error, who had been convicted before the Supreme Court by the casting vote of the president. The principal question was whether an indictment charging that several persons intending unlawfully by direct means to cheat and defraud an incorporated company and divers others unknown, of their effects, did fraudulently and unlawfully conspire together injuriously and unjustly, by wrongful and indirect means, to cheat and defraud the company and other of divers effects, and that in execution thereof, they did, by certain undue, indirect and unlawful means, cheat and defraud the company, etc., was a good and valid indictment. As two distinguished Senators and members of the Court of Errors, took different sides of this question, the subject was fully and elaborately discussed, the authorities were all reviewed; and the case may be referred to as a full and able exposition of the learning on the subject. Let us then first consider how the subject of criminal conspiracy is treated by elementary writers. The position cited by Chitty from Hawkins, by way of summing up the result of the cases is this: "In a word all confederacies wrongfully to prejudice another are misdemeanors at common law, whether the intention is to injure his property, his person or his character." And Chitty adds that the "object of conspiracy is not confined to an immediate wrong to individuals; it may be to injure public trade, to affect public health, to violate public police, to insult public justice, or to do any act in itself illegal."'5 Several rules upon this subject seem to be well established, to wit, that the unlawful agreement constitutes the gist of the offense, and 1 Rex v. Lord Grey, 3 Har. St. Tr. 519. 2 13 East, 228. 3 vol. 3, p. 1140. 4 9 Cow. 578. 3 Chitty's Cr. L. 1139. therefore that it is not necessary to charge the execution of the unlawful agreement.1 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 a 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 purpose not of itself criminally punishable set 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 defence, 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 the use of frauds, force, falsehood or other criminal or unlawful means, such intended use of fraud, force, falsehood or 1 Com. v. Judd, 2 Mass. 337; 3 Am. Dec. 54. |