State v. Dalton

• Decision Date: 29 December 1908
• Citation: 114 S.W. 1132,134 Mo. App. 517
• Parties: STATE v. DALTON et al.
• Court: Missouri Court of Appeals

114 S.W. 1132

134 Mo. App. 517

STATE v. DALTON et al.

St. Louis Court of Appeals. Missouri.

December 29, 1908.

1. CRIMINAL LAW (§ 9)—ADOPTION OF COMMON LAW—CONSPIRACY.

Under Rev. St. 1899, § 4151 (Ann. St. 1906, p. 2250), providing that the common law and statutes of England, except of a local nature, made prior to the fourth year of James I, which are not repugnant to our institutions and laws, are in force in Missouri, the common-law crime of conspiracy was in force in this state prior to the statute on the subject.

2. COMMON LAW (§ 11)—MANNER OF REPEAL.

The common law on a subject may be expressly repealed by statute, or by necessary repugnance between it and the statute so that they cannot both stand, or by such a revision of the whole subject-matter as shows an intention to substitute the statute for the common law, the two latter methods being repeals by implication.

3. STATUTES (§ 158) — REPEAL BY IMPLICATION.

The law does not favor repeals by implication, and a legislative intent to do so is not presumed, and such repeals will not be adjudged unless necessary or in obedience to an obvious legislative intent.

4. CRIMINAL LAW (§ 9)—REPEAL OF COMMON LAW.

Though the express words of a statute do not show an intent to repeal the common law on the subject, if it revises the whole subject-matter so as to show an intention to substitute the statute for the common law, it operates as a repeal, especially where the common-law offense is defined and enacted by an affirmative statute prescribing the penalty for its violation.

5. COMMON LAW (§ 11)—REPEAL—STATUTES —PARTIAL REPEAL.

The common law is not abrogated by a statute which does not expressly repeal the common law or does not revise a whole subject covered by such law, unless such statute is in exclusive or negative terms, or is so clearly repugnant to the common law that it necessarily implies a negative.

6. COMMON LAW (§ 11)—REPEAL—STATUTES IN DEROGATION OF COMMON LAW.

Statutes in derogation of the common law will be strictly construed, and will not operate as a repeal of the common law beyond their terms, unless they are clearly repugnant to it.

7. CRIMINAL LAW (§ 9) — ABROGATION OF COMMON LAW—OFFENSE OF CONSPIRACY.

Rev. St. 1899, § 2152 (Ann. St. 1906, p. 1384), provides that if two or more persons agree, conspire, etc., to commit any offense, or to falsely or maliciously indict another or procure another's arrest, to falsely or maliciously move or maintain any suit, to cheat and defraud another by criminal means, to obtain money by false pretenses, commit any act injurious to the public health or morals, or to obstruct justice or the administration of the laws, shall be guilty of a misdemeanor; and section 2153 (Ann. St. 1906, p. 1385), provides that no agreement except to commit a felony upon the person, or arson or burglary, shall be deemed a conspiracy unless some act be done to effect the object. Held, in view of Rev. St. 1899, § 4152 (Ann. St. 1906, p. 2251), recognizing the existence of common-law offenses by limiting the punishments therefor, and the history of the adoption of the statutes on conspiracy from the New York statutes, that such statutes merely affirmed the common law in part, except that section 2153 (Ann. St. 1906, p. 2251), required an overt act in certain cases, and did not embrace the whole subject-matter of the offense at common law, or repeal the common law on the subject except in so far as they are repugnant thereto.

8. CONSPIRACY (§ 23) — ELEMENTS OF OFFENSE.

The gist of the offense of conspiracy at common law is a corrupt combination of two or more persons by concerted action to accomplish some criminal or unlawful purpose, or some purpose not of itself unlawful, by criminal or unlawful means.

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

9. CONSPIRACY (§ 27)—ELEMENTS OF OFFENSE —OVERT ACTS.

The offense of conspiracy at common law is complete without an overt act, and such acts are alleged and proved only as tending to show the intention of the parties or in aggravation of the unlawful combination.

10. CONSPIRACY (§ 28)—CRIMINAL "CONSPIRACY" —CONSPIRACY TO COMMIT CRIME.

A combination, by direct or remote concert, to do an act which would be a crime if done by one party, constitutes the offense of conspiracy.

11. CONSPIRACY (§ 25) —"CRIMINAL CONSPIRACY" —ELEMENTS—COMBINATION.

Where the concerted action of two or more results in an increased ability to accomplish an injurious purpose, either the means or the purpose will be rendered criminal so as to amount to a criminal conspiracy, though the means or the end were not criminal if performed by a single individual.

12. CONSPIRACY (§ 30)—CONSPIRACY TO INJURE BUSINESS.

If parties are not under contract, their associates may advise them to either quit or continue a particular service, or not to return thereto except upon reasonable conditions, such conduct not amounting to a criminal conspiracy.

13. MASTER AND SERVANT (§ 339)—INTERFERENCE WITH RELATION—CIVIL LIABILITY.

It is unlawful to induce employés not to return to work for a former employer for the sole purpose of extorting money from the employer in order to secure the return of the employés to prevent injury to his business, and the employer could sue in tort to recover the money so paid.

14. CONSPIRACY (§ 43)—CRIMINAL CONSPIRACY —CONSPIRACY.

A count of an indictment alleged that defendants conspired to induce certain mechanics to quit their employment and persuaded them not to return to their work, though the employer badly needed their services, until he had paid defendants a sum to withdraw their influence; and another count charged that the mechanics voluntarily quit the employment and defendants conspired and influenced them not to return until the employer had paid defendants a certain sum to withdraw their influence, which was done. Held, that both counts of the indictment charged the offense of conspiracy at common law, as modified by Rev. St. 1899, § 2153 (Ann. St. 1906, p. 1385), requiring an overt act.

Error to St. Louis Court of Criminal Correction; Wilson A. Taylor, Judge.

Charles J. Dalton and another were jointly indicted for conspiracy, and the indictment was quashed and defendants discharged, and the state brings error. Reversed and remanded.

The defendants were jointly indicted on a charge of conspiracy by the grand jury in the circuit court of the city of St. Louis. In accord with the statute in cases of misdemeanor, the indictment was duly transferred to the court of criminal correction for further proceedings thereon. The defendants, being duly arraigned in that court, entered a plea of not guilty. Afterwards their motion to quash the indictment on the ground of its insufficiency to charge an offense against the laws of this state was sustained by the court, the indictment was quashed, and final judgment given thereon by which the defendants were discharged. From this judgment the state prosecutes a writ of error in this court, under authority of sections 2711 and 2709, Rev. St. 1899 (sections 2711, 2709, pp. 1594, 1593, Ann. St. Mo. 1906). The question for decision is the sufficiency of the facts stated in the indictment to constitute an offense under the laws of Missouri.

Omitting caption and signatures, the indictment is as follows:

"The grand jurors of the state of Missouri within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged, upon their oath present, that one, William Burke, on the twenty-first day of April, nineteen hundred and five, was a plumber and plumbing contractor in the city of St. Louis, engaged in the business of general plumbing and contracting work, and doing plumbing work on contract, and then and there had contracts to do a large amount of plumbing work in and about certain buildings, to wit, one building at Numbers 5013 and 5015 Delmar avenue, and one building at Number 4139 Maffitt avenue, both in said city of St. Louis, then and there being constructed, and that in and about his said business of doing said contract-work and executing said contract, he, the said William Burke, employed and then and there had in his employ two journeymen plumbers, to wit, Charles Lambert and Cornelius L. Crowley;

"And that, on or about the said twenty-first day of April, nineteen hundred and five, Charles J. Dalton and Franklin C. Fay, intending, unlawfully, fraudulently, and deceitfully to extort, obtain and procure of and from the said William Burke a large sum of money for the use of themselves and others, whose names are to these grand jurors unknown, and in order to extort, obtain and procure said large sum of money, did, at the city of St. Louis, unlawfully and corruptly conspire to cause, procure and induce the said journeymen plumbers, who were then and there in the employ of said William Burke, in and about the execution and performance of the aforesaid contracts, to stop and quit the employment of the said William Burke, and to stop their work for said William Burke in and about the execution and performance of said contracts, and to thereby hinder and delay the said William Burke in the execution and performance of said contracts.

"And that the said Charles J. Dalton and Franklin C. Fay, in furtherance of their conspiracy aforesaid, on the said twenty-first day of April, 1905, at the city of St. Louis aforesaid, did corruptly and unlawfully induce the said journeymen plumbers so employed by the said William Burke as aforesaid, to quit the employment of the said William Burke, and to hinder, delay and prevent the said William Burke in the execution of said contract aforesaid, and then and there did, in the furtherance of their conspiracy, state and represent to the said William Burke that unless he, the said William Burke, would then and there pay to them, the said Charles J. Dalton and Franklin C. Fay, the sum of two hundred ($200.00) dollars, lawful money...