Harris v. Commonwealth

• Decision Date: 02 February 1912
• Citation: 113 Va. 746,73 S.E. 561
• Parties: HARRIS et al. v. COMMONWEALTH.
• Court: Virginia Supreme Court

73 S.E. 561

(113 Va. 746)

HARRIS et al.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Feb. 2, 1912.

1. Conspiracy (§ 23^*)—"Criminal Conspiracy."

A criminal conspiracy is a combination of two or more persons by some concerted action to accomplish a criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means.

[Ed. Note.—For other cases, see Conspiracy, Cent. Dig. §§ 30-39; Dec. Dig. § 23.*

For other definitions, see Words and Phrases, vol. 2, pp. 1454-1461; vol. 8, p. 7613; vol.

2, pp. 1745-1746.]

2. Monopolies (§ 12*)—Combinations Prohibited—Common-Law Rule.

The common law did not prohibit the creation of a monopoly by individuals, but only the granting of a monopoly by the sovereign, and combinations in restraint of trade, in view of the laws against engrossing which were not technically monopolies at common law, were only unlawful when made among dealers in provisions or the necessaries of life or of merchandise or manufacture in the market.

[Ed. Note.—For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*]

8. Monopolies (§ 18*) — Combinations by Insurance Companies — "Insurance" — "Necessaries."

Insurance is not an article of merchandise or manufacture, or one of the necessaries of life, within the laws against engrossing, prohibiting combinations among dealers in merchandise or manufacture or necessaries of life, since a policy of insurance is a simple contract of indemnity against loss.

[Ed. Note.—For other cases, see Monopolies, Cent. Dig. § 14; Dec. Dig. § 18.*

For other definitions, see Words and Phrases, vol. 4, pp. 3674-3677; vol. 5, pp. 4693-4703.]

4. Conspiracy (§ 23*) — Combinations by Insurance Company to Fix Rates.

A combination of fire insurance companies to fix rates and control the business of insurance in a city, though an agreement in restraint of trade, is not an indictable conspiracy at common law.

[Ed. Note.—For other cases, see Conspiracy, Dec. Dig. § 23.*]

6. Conspiracy (§ 43*)—Criminal Conspiracy—Indictment.

Where the object of a conspiracy is not criminal or illegal, and the illegality consists of the means by which the object is effected, the indictment must set forth the means which must be such as to constitute an offense at common law or by statute.

[Ed. Note.—For other cases, see Conspiracy, Cent Dig. §§ 79-99; Dec. Dig. § 43.*]

6. Criminal Law (§ 1*)— Offenses—Motive.

Acts which will subject one to a civil action without regard to the motive with which it is done may be indictable when done maliciously.

[Ed. Note.—For other cases, see Criminal Law, Cent Dig. § 1; Dec. Dig. § 1.*]

7. Conspiracy (§ 23*)—Illegal Combinations—Warrant.

A warrant alleging that insurance companies and individuals doing business in a city which had levied a license tax on insurance companies doing business there maliciously conspired to arbitrarily raise insurance rates for the purpose of maintaining a monopoly of the insurance business in the city, and to stifle competition and coerce the city authorities to repeal the license tax, does not charge a criminal conspiracy at common law, but shows that the companies had just cause for raising their rates in the city by considering the license taxes imposed, and the motive charged does not make the acts complained of a criminal offense.

[Ed. Note.—For other cases, see Conspiracy. Dec. Dig. § 23.*]

Error to Corporation Court of Newport News.

A. H. Harris and others were charged Willi criminal conspiracy, and from a judgment overruling demurrers to the criminal warrant they bring error. Reversed and rendered.

O. D. Batchelor, R. Randolph Harrison, J. Winston Read, and Alex C. King, for plaintiffs in error.

The Attorney General and C. C. Berkeley, for the Commonwealth.

BUCHANAN, J. This is a prosecution for criminal conspiracy. It was commenced before a justice, but upon appeal to the corporation court of the city of Newport News the warrant was by leave of the court amended.

The amended warrant is quite long. It charges, in substance, that on May 17, 1910, and previously for a number of years, a large number of insurance companies had been doing all the fire insurance business of the city, which insurance was a necessity to all persons owning property in the city; that prior to the said 17th of May the city authorities had passed an ordinance requiring a certain license tax to be paid by each fire insurance company doing business in the city for the license year beginning May 1, 1910; that the (6) plaintiffs in error and some 20 other persons, naming them, and others unknown, together with all the said fire insurance companies and associations, did on the 17th of the said May, with a wanton and malicious intent to damage and injure, oppress, and coerce the persons owning property in the city, and the council of the city and the members thereof acting in their official capacity, "maliciously, immorally, corruptly, wantonly, and fraudulently, unlawfully, and wickedly, conspire, combine, confederate, and agree together, with intent aforesaid" by coercion and intimidation to arbitrarily fix, establish, regulate, control, charge, and collect the premiums of insurance on all policies and contracts of insurance issued, and to be issued by the said insurance companies and all others who might attempt to do a fire insurance business in the city, and all their agents, on all property in the city, for the purpose of maintaining a wicked and exclusive monopoly of all the fire insurance business done in the city and state, and with like intent to stifle and destroy all competition in fire insurance in the city, and with like intent to arbitrarilycharge, coerce, extort, and collect the noncompetitive rates and premiums so arbitrarily fixed, and to prevent persons owning property in the city from procuring fire insurance at any other than the said established noncompetitive rates, and thereby coerce and intimidate said council and its members to repeal the said license tax on said fire insurance companies—all of which was charged to be the great damage of the city and state, the council and its members, and against the peace and dignity of the commonwealth.

The warrant further charged that, pursuant to said conspiracy, the parties had done the said acts complained of.

There are numerous assignments of error; but, in the view we take of the case, it will be unnecessary to consider any of them except the demurrer to the warrant.

That demurrer is in substance that the warrant does not charge a criminal offense.

It is conceded that there is no statute of this state prohibiting such a combination as that charged in the amended warrant, but the contention of counsel for the commonwealth is that the combination charged is a crime at common law.

No case is cited by the counsel for the commonwealth which holds that a combination of fire insurance companies and associations to fix, regulate, and control fire insurance rates is a criminal conspiracy at common law; but the claim is that the common law "is an expansive, elastic, progressive system, and its old principles are as effective to-day to prevent unlawful conspiracies to oppress the people in the exercise of their rights to enjoy the benefits of modern insurance as it is to protect the people to-day in their rights to enjoy wholesome food at reasonable prices."

It is true that the principles of the common law are elastic, and that one of its peculiar merits is that it adapts itself to the rights of parties under changed circumstances (Foster v. Commonwealth, 96 Va. at pages 309, 310, 31 S. E. 503, 42 L. R. A. 589, 70 Am. St. Rep. 846), but the difficulty is in ascertaining what are the principles or rules of the common law as to criminal conspiracies. The cases and text-writers are not agreed on the subject.

The definition or description which seems to be more generally adopted is that 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. See Jones' Case, 4 B. & A. 45; Pettibone v. U. S., 148 U. S. 197, 13 Sup. Ct 542, 37 L. Ed. 419; Commonwealth v. Hunt, 4 Mete. (Mass.) 111, 38 Am. Dec. 346; Mogul Steamship Co. v. McGregor, etc., 23 Q. B. Div. p. 624; Wright on Cr. Conspiracy (Carson's Ed.) 48, 110-111, and authorities cited; 2 Wharton's Cr. Law, § 1337.

It is insisted that the object of the combination charged in the warrant was to create and maintain a monopoly in the fire Insurance business in the city of Newport News, and that the creation of a monopoly in an article of necessity was a criminal offense at common law.

It seems to be settled that there was no prohibition at common law against the creation of a monopoly by individuals. Chief Justice White in Standard Oil Company v. United States, 221 U. S. 1, 52, 55, 31 Sup. Ct 502, 512, 55 L. Ed. 619, 34 L. R. A. (N. S.) 834, says it is remarkable that nowhere at common law can there be found a prohibition against the creation of monopoly by an individual. "The frequent granting of monopolies [by the sovereign] and the struggle which led to a denial of the power to create them—that is to say, to the establishment that they were Incompatible with the English constitution—is known to all and need not be reviewed. The evils which led to the public outcry against monopolies and to the final denial of the power to make them may be thus summarily stated: (1) The power which the monopoly gave to the one who enjoyed it to fix the price and thereby injure the public; (2) the power which it engendered of enabling a limitation on production; and (3) the danger of deterioration in quality of the monopolized article which it was deemed was the inevitable resultant of the monopolistic control over its production and sale. As monopoly as thus conceived embraced only a consequence arising from an exertion of sovereign power, no...