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 persons 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 aud 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 him.

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,1 though the case is so briefly reported, that the reasons on which it rests are not very obvious. The case seems to have gone on the ground that the means were a matter of evidence, and not of averment; and that after verdict it was to be presumed, that the means contemplated and used were such as to render the combination unlawful and constitute a conspiracy.

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 his bread too high, should propose to him to reduce his prices, or if he did not, that 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

1 3 Doug. 337.

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 associates was to diminish his profits and thus impoverish him, though the ultimate and laudable object of the combination was to reduce the cost of bread to themselves and their neighbors. The same thing may be said of all competition in every branch of trade and industry; and yet it is through that competition that the best interests of trade and industry are promoted. It is scarcely necessary to allude to the familiar instances of opposition lines of conveyance, rival hotels, and the thousand other instances where each strives to gain custom to himself, by ingenious improvements, by increased industry, and by all the means by which he may lessen the price of commodities, and thereby diminish the profits of others.

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; and as a further legal consequence, that as the criminality will depend on the means, those means must be stated in the indictment. If the same rule were to prevail in criminal which holds in civil proceedings-that a case defectively stated may be aided by a verdict then a court might presume, after verdict, that the indictment was supported by proof of criminal or unlawful means to effect the object. But it is an established rule in criminal cases that the indictment must state a complete indictable offense, and can not be aided by the proof offered at the trial.

The fourth count avers a conspiracy to impoverish Jeremiah Horne without stating any means, and the fifth alleges a conspiracy to impoverish employers, by preventing and hindering them from employing persons not members of the Bootmakers' Society; and these require no remarks which have not been already made in reference to the other counts.

One case was cited which was supposed to be much in point, and which is certainly deserving of great respect.1 But it is obvious that this decision was founded on the construction of the Revised Statutes

1 People v. Fisher, 14 Wend.; 28 Am. Dec. 501.

of New York, by which this matter of conspiracy is now regulated. It was a conspiracy by journeymen to raise their wages, and it was decided to be a violation of the statutes, making it criminal to commit any act so injurious to trade or commerce. It has therefore an indirect appli

cation only to the present case.

A caution on this subject suggested by the commissioners for revising the statutes of New York, is entitled to great consideration. They are alluding to the question whether the law of conspiracy should be extended so as to embrace every case where two or more unite in some fraudulent measure to injure an individual by means not in themselves criminal. "The great difficulty," say they, "in enlarging the definition of this offense, consists in the inevitable results of depriving the courts. of equity of the most effective means of detecting fraud, by compelling a discovery on oath. It is a sound principle of our institutions that no man shall be compelled to accuse himself of any crime, which ought not to be violated in any case. Yet such must be the result, or the ordinary jurisdiction of the courts of equity must be destroyed by declaring any private fraud, when committed, by two, or any concert to commit it, criminal." 1 In New Jersey, in a case which was much considered, it was held that an indictment will not lie for a conspiracy to commit a civil injury.2 And such seemed to be the opinion of Lord Ellenborough in The King v. Turner,3 in which he considered that the case of The King v. Eccles, though in form an indictment for a conspiracy, in restraint of trade affecting the public.

4

It appears by the bill of exceptions that it was contended on the part of the defendant, that this indictment did not set forth any agreement to do a criminal act, or to do any lawful act by criminal means, and that the agreement therein set forth, did not constitute a conspiracy indictable by law of this State, and that the court was requested so to instruct the jury. This the court declined doing, but instructed the jury that the indictment did describe a confederacy among the defendants to do an unlawful act, and to effect the same by uniawful means; that the society organized and associated for the purposes described in the indictment was an unlawful conspiracy against the laws of this State, and that if the jury believed from the evidence that the defendants or any of them had engaged in such confederacy, they were bound to find such of them guilty.

In this opinion of the learned judge, this court, for the reasons stated, can not concur. Whatever illegal purpose can be found in the constitution of the Bootmakers' Society, it not being clearly set forth in the indictment, can not be relied upon to support this conviction.

1 Lambert v. People, 9 Cow. 625. 2 State v. Rickey, 4 Halst. 293.

3 13 East, 231.

43 Doug. 337.

So, if any facts were disclosed at the trial, which if properly averred, would have given a different character to the indictment, they did not appear in the bill of exceptions, nor could they, after verdict, aid the indictment. But looking solely at the indictment, disregarding the qualifying epithets, recitals, and immaterial allegations, and confining ourselves to facts so averred as to be capable of being traversed and put in issue, we can not perceive that it charges a criminal conspiracy punishable by law. The exceptions must therefore be sustained, and the judgment arrested.

Several other exceptions were taken, and have been argued; but this decision on the main question has rendered it unnecessary to consider them.

CONSPIRACY - VICTIM'S MOTIVE ILLEGAL.

STATE v. CROWLEY.

[41 Wis. 33.]

In the Supreme Court of Wisconsin.

1. Where the Victim of a Conspiracy is himself endeavoring to do an unlawful act there can be no conviction.

2. Certain Persons Falsely Represented to A. that certain boxes contained counterfeit money and A. was induced to part with money to obtain the boxes, with a view of uttering the counterfeit money and to prevent a threatened arrest of A.for having such counterfeit money. The boxes contained only sawdust. Held, that the confederates could not be convicted of a conspiracy to obtain the money of A. by false pretenses.

REPORTED from the Circuit Court of Monroe County.

The defendants were tried and convicted upon an information charging them with a criminal conspiracy. The Circuit Court suspended judgment, and reported the case to this court pursuant to the statute1 for the determination of the following questions of law:

1. Does the first count of the information on which the defendants were tried, charge a criminal offense?

2. Does the evidence in the case support the charge of conspiracy as contained in said first count.

It is charged in first said count of the information, that, on the day and at the place therein specified, the defendants, "wickedly and unjustly devising and intending one Daniel Burke to defraud and cheat of his money and property, did then and there unlawfully, falsely and

1 Rev. Stats., ch 180, sec. 8.

fraudulently conspire, combine, confederate and agree together and among themselves, to get and obtain, knowingly and designedly, by false pretenses and by false and privy tokens and subtle means and devices, of him the said Daniel Burke, one hundred and ten dollars in money, the money and property of him the said Daniel Burke, of the value of one hundred and ten dollars, with the intent then and there to cheat and defraud him the said Daniel Burke of the said money, against the peace and dignity of the State of Wisconsin."

The testimony on the trial to which the second question relates is substantially as follows: The defendant, C. Crowley, solicited Daniel Burke to pay him fifteen dollars for one hundred and fifty dollars of counterfeit money. Burke agreed to purchase the same, and paid Crowley the fifteen dollars therefor. The latter inclosed the money in a letter to some person (who, the prosecution claims, is the defendant James Crowley), and sent the letter by mail. This occurred at Sparta, Wisconsin. After some days, Burke received a letter mailed at Lake City Minnesota, and signed "C. O'Donnell," acknowledging the receipt of the fifteen dollars and promising to forward" the goods" in a few days. About a month later, Burke received another letter similarly signed, and mailed at Jefferson, Wisconsin, informing him that the writer had sent him by express to Dover (a railway station near Sparta), a box marked "Condition Powders," containing "$1,000 of various denominations, with full directions how to pass it, in print," and requiring Burke to pay the express agent twenty dollars, and to remit the balance, $65 as soon as he could. Burke thereupon went to Dover, found the box there, paid the agent the charges and $20, took the box home, opened it, and found that it contained nothing but grass and a cigar box. He informed C. Crowley of the contents of the box, and the latter promised to make it up all right, and to write "the company about it."

A week or two later, Burke received another letter, mailed at Oconomowoc, and signed as were the others, "C. O'Donnell," in which the writer indulges in some doubts as to the truthfulness of Burke's story, but informs him that he has shipped $1,000 more to Greenfield for him. This letter required Burke to pay $25 down, and proposed to wait for the balance of $75, and the balance of $65 due on the first transaction, till he should “realize it out of the business." Burke went to Greenfield, paid the $25 and express charges, obtained the box, and returned with it to Sparta. C. Crowley met him there at the depot and as they were walking up town together, having the box with them, they were arrested by the defendant Carnahan, who was a constable. Carnahan accused them of having counterfeit money in the box, and threatened to expose them and have them punished; but, after some