People v. Causley

• Decision Date: 06 October 1941
• Docket Number: Motion No. 477.
• Citation: People v. Causley, 299 Mich. 340, 300 N.W. 111 (Mich. 1941)
• Parties: PEOPLE v. CAUSLEY.
• Court: Michigan Supreme Court

299 Mich. 340

300 N.W. 111

PEOPLE

v.CAUSLEY.

Motion No. 477.

Supreme Court of Michigan.

Oct. 6, 1941.

Monroe Causley and others were charged with conspiracy and from an order of the circuit court which overruled a motion to dismiss the information, he appeals in the nature of mandamus.

Mandamus denied.Appeal from Circuit Court, Iosco County; Herman Dehnke, judge.

Argued before the Entire Bench.

William L. Hellerman and John J. McGinty, Jr., both of Bay City, and Dennis J. O'Keefe, of Standish (Maurice Sugar, of Detroit, of counsel), for appellant.

Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., John A. Stewart, Pros. Atty., of Tawas City, and A. J. Neberle, Asst. Pros. Atty., of Saginaw, for appellee.

BUTZEL, Justice.

Because of unusual circumstances we issued an order to show cause why the circuit judge should not have granted a motion to dismiss the information, which charged defendant Causley and others with conspiracy to damage and destroy the poles and wires of the Consumers Power Company, a public utility corporation. As the jury were unable to agree upon a verdict, the testimony given on the trial need not be reviewed.

Defendant advances two arguments in support of his motion to dismiss:

1. Conspiracy is an offense known to the common law. Conspiracy to commit a common-law crime is itself a common-law crime. But an agreement or confederation to commit a crime created by statute, and unknown to the common law, cannot be the common-law crime of conspiracy. The crime contemplated by the confederacy in the case at bar, malicious injury to electric transmission wires, is a creature of statute, Act No. 328, § 383, Pub.Acts 1931; Stat.Ann. § 28.615, did not exist at common law, and an agreement the object of which is to commit an injury to something which was obviously unknown at the time we adopted our Constitution cannot, therefore, be a common-law conspiracy.

2. Conspiracies to commit crime are historically and logically germane to attempts to commit crime, and it would be incongruous for a conspiracy to commit a crime to be accounted as of a higher grade than the crime contemplated by such conspiracy. With respect to attempts, the legislature has provided that the grade and punishment of an attempt to commit a crime shall vary with, and be less than, the grade and punishment of the crime attempted, Act No. 328, § 92, Pub.Acts 1931; Stat.Ann. § 28.287. A similar legislative intent must be presumed with respect to conspiracies, and if the object of an agreement is to commit a statutory misdemeanor, malicious injury to electric transmission wires, Act No. 328, § 383, Pub.Acts 1931; Stat.Ann. § 28.615, which is punishable at most by imprisonment in the county jail for 90 days and fine of $100, Ibid. § 504; Stat.Ann. § 28.772, it would be the height of absurdity to hold that a conspiracy to commit such a misdemeanor is a felony, punishable by imprisonment in State prison for not more than 5 years, or by fine of not more than $2,500, Ibid., § 505; Stat.Ann. § 28.773.

In answer to the first contention, it must first be observed that the thing defendant conspired to do is malum in se, not malum prohibitum. Injuring maliciously an electric transmission wire is wrong, not because it is prohibited (as driving on the left side of the street would be), but because of its intrinsic wickedness. It is a mooted question whether malicious mischief of this sort is a crime at common law; the fact that statutes were passed in England from a very early date defining elaborately the various types of indictable malicious mischief leaves the question obscure, if not insoluble (Clark & Marshall on Crimes, 4th Ed., § 391, p. 509); but we shall assume solely for the purposes of this decision that the act he conspired to do was not a crime at common law, and is such only by virtue of our statute. Nevertheless, we have so often declared the law to be that ‘Conspiracy to do an unlawful act was an indictable offense at the common law, and there never was any distinction between conspiracy to commit an act which was unlawful at the common law or is declared to be unlawful by statute’ (People v. Watson, 75 Mich, 582, 586, 42 N.W. 1005, 1006) that we are surprised that counsel raise the issue at this date. Our declaration of like tenor, in Alderman v. People, 4 Mich. 414, 432,69 Am.Dec. 321, based on a careful reveiw of the authorities at that date (1857), ‘That, to constitute an indictable conspiracy, there must be a combination of two or more persons to commit some act, known as an offense at common law, or that has been declared such by statute,’ is echoed in People v. Schultz, 210 Mich. 297, 313, 178 N.W. 89;People v. Tenerowicz, 266 Mich. 276, 282, 253 N.W. 296;People v. Beath, 277 Mich. 473, 479, 269 N.W. 238, and People v. Fields, 288 Mich. 166, 169, 284 N.W. 685.

The development of the crime of conspiracy during the successive centuries of English history is an interesting subject from the academic point of view, and valuable contributions of this character have been made by Justice Wright in his work The Law of Criminal Conspiracies (London, 1873), Professor Holdsworth in his History of English Law, Mr. Francis B. Sayre in his article Criminal Conspiracy, 35 Harvard Law Review 393, and Mr. James W. Bryan in his Development of the English Law of Conspiracy.

These writers make it plain that during the Middle Ages prosecutions for criminal conspiracy were strictly confined to the specific cases enumerated in the early Edwardian statutes on the subject, but that, during the seventeenth century, the scope of the offense was greatly broadened by the Courts of Star Chamber and King's Bench. The first step in extending the limits of the common-law crime was taken in 1611, when it was decided, in the celebrated Poulterers' Case, 9 Coke 55b, that a mere conspiracy, though nothing was executed, or ‘put in ure,’ was indictable. The object of that conspiracy was falsely to accuse the prosecutor of robbery, which was clearly indictable under the early statutes of conspirators. Mr. Sayre proceeds: ‘During the seventeenth century the courts took a second step in extending and broadening the limits of the crime of conspiracy of even greater importance than the one just described. Prior to this century, the crime had been confined very strictly to combinations to defeat the just administration of the law, such as the procuring of false indictments, embracery, and maintenance. During the seventeenth century the courts began to extend the offense so as to cover combinations to commit all crimes of whatsoever nature, misdemeanors as well as felonies. This was a bold extension indeed. It was due in part to the abolition of the Court of Star Chamber, which cast upon the Court of King's Bench the duty, hitherto assumed by the Star Chamber, of dealing with misdemeanors; and the judges of King's Bench, groping their way through unfamiliar paths, tried new legal adventures.’ 35 Harvard Law Review 393, 400.

And Holdsworth, after remarking that ‘in the Poulterers' Case it was ruled in the Star Chamber that the mere conspiracy, though nothing was executed, was and offense,’ asks: ‘But, if a conspiracy is so regarded, why restrict it to conspiracies to commit some offense in relation to legal proceedings? The Star Chamber acted upon this view; and just as it punished all kinds of attempts to commit wrongful acts, so, a fortiori, it punished all kinds of conspiracies to commit the many varied offences punishable either by it or by the common law courts.’ History of English Law, Vol. 5, pp. 204, 205; for further discussion, see vol. 8, pp. 378-384.

During the period under discussion, there were not many statutory misdemeanors; therefore, it is not surprising that no cases of common-law criminal conspiracies to commit statutory misdemeanors are found in the early English books. Many offenses which now are punished by temporal statutes were then cognizable only by the ecclesiastical courts, and by them punished as canonical crimes. It is noteworthy that the common-law courts undertook to punish conspiracies to commit such offenses, which were utterly unknown to the common law, as common-law crimes. Rex v. Lord Grey, K.B. 1682, 9 State Trials 127; Rex b. Delaval, K.B. 1763, 3 Burrow 1434, 97 Eng.Rep. 913. If the common-law courts would punish as a common-law misdemeanor a conspiracy to commit an offense unknown not only to the common law, but also to any branch of the temporal law, it is deducible, a fortiori, that they would punish in like manner a conspiracy to commit an offense unknown to the common law, but created by statute law of the realm.

This deduction is supported by the authorities. In Rex v. Journeymen-Taylors of Cambridge, K.B. 1721, 8 Modern 10, 88 Eng.Rep. 9, the affirmance of conviction, despite much loose language in the opinion, may really be grounded upon the fact that defendants were guilty of a common-law misdemeanor in that they conspired to violate an Act of Parliament, 7 Geo. I, Stat. 1, c. 13, § 7 (1720), which created a new misdemeanor, unknown to the common law. Rex v. Turner, K.B. 1811, 13 East 228, 104 Eng.Rep. 357, which is of opposite tendency, was overruled by Regina v. Rowlands, K.B. 1851, 2 Denison 364, 388, 169 Eng.Rep. 540, 550, 551. The last-mentioned case is squarely in point with the case at bar, with respect to the point under discussion. An Act of Parliament, 6 Geo. IV, c. 129, § 3 (1825), had created a new misdemeanor, unknown to the common law (intimidating or molesting a workman), and defendants were indicted for the common-law misdemeanor of conspiring to commit the statutory misdemeanor. In affirming conviction, Lord Chief Justice Campbell held: ‘* * * an agreement to commit an indictable offense undoubtedly amounts to a conspiracy.’

In People v. Richards, 1 Mich. 216, 221, 222,51 Am.Dec. 75, we declared that at common law an offense of lower grade may merge in one of higher grade,...