People v. Petheran

• Decision Date: 20 January 1887
• Citation: 31 N.W. 188,64 Mich. 252
• Court: Michigan Supreme Court
• Parties: PEOPLE v. PETHERAN.

31 N.W. 188

64 Mich. 252

PEOPLE v. PETHERAN.

Supreme Court of Michigan

January 20, 1887

Error to circuit court, Newaygo county.

Information for conspiracy.

CAMPBELL C.J., dissenting. Smith Nims, Hoyt & Erwin, for defendant and appellant.

MORSE J.

The respondent was tried and convicted upon the following information, duly verified:

"STATE OF MICHIGAN--THE CIRCUIT COURT FOR THE COUNTY OF NEWAYGO.

"Newaygo County--ss.: George Luton, prosecuting attorney in and for the county of Newaygo, aforesaid, for and in behalf of the people of the state of Michigan, comes into said court, in the May term thereof, in the year 1886, and gives the court here to understand and be informed that heretofore, to-wit, on the twenty-fourth day of January, 1886, at the village of Newaygo, in said county, J.W. Petheran, chief engineer, and Fred. Coleman, assistant engineer, and James McLaughlin, road- master, of the Chicago & West Michigan Railway Company, and Adam McNabb, together with divers other persons whose names are unknown, to the number of seventy-five, being persons of evil minds and dispositions, did unlawfully and wickedly conspire, combine, confederate, and agree together willfully and maliciously to obstruct and impede the regular operation and conduct of the business of the Newaygo Manufacturing Company, a corporation organized under the laws of this state, to-wit, the manufacture of lumber, pails and tubs, flour and feed, by it then and theretofore carried on in said village of Newaygo, by acts and means of intimidation, to-wit, by then and there assembling together in the night-time, entering upon the premises of said corporation in said village, and obstructing the usual flow of water in the canal thereon owned by it, by means of which its said business was and had been so carried on, and by force and violence preventing the employes of said corporation from removing said obstructions, and thereby preventing the lowering of the water in said canal, and by causing a quantity of hay and other foreign material to float down said canal, and clog and obstruct the wheels used in propelling the machinery and mills and factory of said corporation, in said village, which were then owned and operated by said corporation for the purpose aforesaid, against the form of the statute in such case made and provided, and against the peace and dignity of the people of the state of Michigan.

"GEORGE LUTON, Prosecuting Attorney."

There was no particular dispute as to the facts of the case. The respondent introduced no testimony in his defense; his counsel contenting themselves upon the trial with general objections against the whole case and theory of the people.

The respondent is the chief engineer of the Chicago & West Michigan Railway Company. This company had a railroad bridge over the Muskegon river, and a canal or mill-race of the Newaygo Manufacturing Company, in the village of Newaygo. The canal ran parallel with the river, and supplied the water that runs the machinery and mills of the Newaygo Company. This bridge was being repaired or rebuilt by the railway company. At midnight of Saturday, or the beginning of Sunday, January 24, 1886, Petheran, McNabb, and McLaughlin, with a large force of men, took possession of this canal, and commenced putting a coffer-dam therein for the purpose of stopping the flow of water, that they might construct piers in the canal for said bridge. Coleman and three others went to the night watchman of the Newaygo Company, and said: "Well, Ed., to make a long story short, we will tell you what we came for. We came here to-night, with two or three hundred men, to shut the water out of the race, and put in these coffer-dams. We came down to look after you, and to keep you from giving the alarm, and arousing the town, and causing trouble and a fight." The night watchman said: "You ought not to keep me here. I have got trips to make, and stations to go to, and it isn't right." The men replied: "That don't make any difference. We can take care of that all right. We have plenty of men in the yard to look after that. We have selected this time, and have come prepared to do it." They kept him a prisoner until 6 o'clock in the morning. They obstructed the flow of the water in the canal, by putting in hay and boards at the head-gates, and removed the slash-boards at the foot of the canal, and by force prevented the men employed by the Newaygo Company from replacing such slash-boards. They also interfered with the wheels of the machinery of the mills, and thereby materially impeded their operation. These obstructions continued, and were maintained by force, until the following Tuesday. The hay and other materials used by them floated down into the wheels of the mill, and injured the machinery more or less.

The respondent, McNabb, and McLaughlin were the leading spirits in this enterprise, and were present most of the time, and were seen and heard giving orders, and directing the men under them, apparently acting in concert, and having in view a common plan and purpose. The telephone communication between the mill and Mr. Clay, the president of the Newaygo Company, who resided at Grand Rapids, was obstructed by some one at the same time; the wires being disconnected, and the circuit broken.

The main objections are--First, to the construction of the information, and the reception of evidence of certain overt acts under it by the court below; and, second, that the acts proven were not in violation of the statute upon which the information was laid.

The information, in my opinion, sets forth no overt acts as being done by the defendant, Petheran, and the others impleaded with him. It must be construed strictly, as claimed by defendant's counsel; and, so construed, it was nothing more nor less than a charge of conspiracy to obstruct and impede the business of the Newaygo Manufacturing Company by combining unlawfully to do so by certain acts and means, describing them. It nowhere alleges that any of these acts were actually committed by the defendants, but that they conspired to commit them.

The court below, during the progress of the trial, and in his instructions to the jury, treated the enumeration of these acts and means, mentioned at the end of the information, as a distinct and specific charge of acts done under and in furtherance of the conspiracy set forth in such information. The question arises whether this erroneous construction of the information resulted in any harm to the defendant sufficient to authorize this court to grant him a new trial. It is plain that the information charged only the offense of conspiracy under section 9275, which is given in full further along in this opinion. If the operation and legitimate consequence of the action of the trial court had any tendency to damage the defendant, then he is entitled to a new trial. But I fail to discover any reason why the erroneous treatment of the information could have been of any harm to the respondent. It is well settled that, in setting out a conspiracy to do an unlawful act, the pleader is not required to allege the means to be resorted to in order to accomplish such conspiracy. People v. Clark, 10 Mich. 310. It is only necessary to set forth the specific means to be employed when the act to be done itself is lawful, but the combination is to do it in an unlawful manner. The allegation of the means intended to be used then becomes important in order to show the criminal or unlawful purpose. People v. Richards, 1 Mich. 216; State v. Crouley, 41 Wis. 271; People v. Barkelow, 37 Mich. 455; Com. v. Eastman, 1 Cush. 190.

The information in this case, without the overt acts referred to therein, shows a conspiracy to commit a single statutory crime, as in the case of People v. Clark, supra. See, also, People v. Barkelow, 37 Mich. 455. The enumeration of the means to be used in the furtherance of the conspiracy could have been treated as surplusage. And, whether so treated or not, I can find no error in admitting evidence of these acts enumerated, or of others not contained in the information, to show the existence of the conspiracy. The act or acts of these parties, in concert, having a legitimate tendency to establish the fact of the conspiracy, were admissible; and the evidence given upon the trial was all of it, except, perhaps, the obstruction of the telephone communication, of acts and orders of Petheran, and at least two others of the indicted parties, while they were together, and manifestly in pursuance of a common purpose and understanding. The telephone matter was sufficiently taken care of by the judge in his charge. The fact that the object of the conspiracy was accomplished, and the unlawful thing conspired to be done performed and completed, does not prevent a conviction upon the charge simply that the defendants conspired to commit the act. The carrying of the conspiracy into effect does not merge the lesser offense charged into the greater; but, if the conspiracy to perform the unlawful act is proven, the conviction follows, though the defendant might have been found guilty of the greater crime had he been charged with it. 1 Bish.CrimLaw, (3d Ed.) �� 804, 805, and cases cited.

As I understand the evidence, there is nothing to show that respondent acted under the orders or direction of any one, or that McLaughlin or McNabb acted entirely under his instructions. On the contrary, it clearly appears that respondent, McLaughlin, and McNabb moved in concert, and that each was busy giving orders of the same import, and in pursuance of a general plan, to the men there with them. It is true that these three men were servants of the railroad company, but there is no proof whatever tending to show that they were...