State v. Dyer

• Decision Date: 16 February 1895
• Citation: 67 Vt. 690,32 A. 814
• Court: Vermont Supreme Court
• Parties: STATE v. DYER et al.

32 A. 814

67 Vt. 690

STATE

v. DYER et al.

Supreme Court of Vermont. Washington.

Feb. 16, 1895.

Exceptions from Washington county court; Munson, Judge.

Josiah B. Dyer and others were convicted of conspiracy, and except. Exceptions overruled.

The material part of the information was as follows: First count: "That Josiah B. Dyer and Thomas Quinlan, of Barre, in the county of Washington, and Frank Morrill, Patrick Morrison, Peter Hernon, E. D. Sherburne, H. P. Sylvester, Thomas Hocking, and Alex. Cruickshank, of Montpelier, in the county of Washington, with divers evil-disposed persons, to the state's attorney unknown, on the 22d day of November, in the year of our Lord one thousand eight hundred and eighty-nine, at Montpelier, in the county of Washington, did unlawfully combine, conspire, confederate, and agree together to prevent, hinder, and deter, by violence, threats, and intimidation, one Jacob McClure, then and there being a stonecutter by trade and occupation, in the employment of the Wetmore & Morse Granite Company, of Montpelier aforesaid, a corporation then and there being and existing by law, from obtaining work or employment, or continuing in his said work and employment, at his said trade or occupation, in the said shops of the said Wetmore & Morse Granite Company, of Montpelier aforesaid, or in any other shops or works for the cutting or manufacture of granite work, with the malicious and unlawful intent of them, the said Josiah B. Dyer, Thomas Quinlan, Frank Morrill, Patrick Morrison, Peter Hernon, E. D. Sherburne, H. P. Sylvester, Thomas Hocking, and Alex. Cruickshank by said violence, threats, and intimidation, to prevent the said Jacob McClure from obtaining work or employment at his said trade and occupation in the shops and works of the said Wetmore & Morse Granite Company, of Montpelier aforesaid, or in any other shops or works for the cutting or manufacture of granite work." Second count: "That Josiah B. Dyer, Thomas Quinlan, of Barre, in the county of Washington, and Frank Morrill, Patrick Morrison, Peter Hernon, E. D. Sherburne, H. P. Sylvester, Thomas Hocking, and Alex. Cruickshank, of Montpelier, in the county of Washington, on the 22d day of November, in the year of our Lord one thousand eight hundred and eighty-nine, at Montpelier, in the county of Washington, being granite cutters by occupation, not being content to allow other granite cutters to pursue their avocations and employment wherever they wished, and on whatever terms might be agreed upon between said other granite cutters and their employers, but contriving and unjustly and unlawfully intending to destroy the effect of free competition in the price and value of labor, to coerce and constrain said other granite cutters, and to compel said other granite cutters to join and become members of a branch of the National Stonecutters' Union, an organization then and there organized and existing at Montpelier aforesaid, and to prevent said other granite cutters from obtaining work at their said trade and occupation, did on the 22d day of November, A. D. 1889, at Montpelier aforesaid, with force and arms, combine, conspire, confederate, and unlawfully agree together, and did enter into an organization and compact whereby it was, among other things, provided, that no person or persons not members of the said branch of the said stonecutters' union should be allowed to work in the shops of the Wetmore & Morse Granite Company, of Montpelier aforesaid, or in any other shop or works for the cutting of granite or manufacturing of granite work. And the said Josiah B. Dyer, Thomas Quinlan, Frank Morrill, Patrick Morrison, Peter Hernon, E. D. Sherburne, H. P. Sylvester, Thomas Hocking, and Alex. Cruickshank, in the pursuance of the said unlawful conspiracy, combination, and compact, with the intent by violence, threats, and intimidation to prevent one Jacob McClure, then and there being a stonecutter by trade and occupation, from obtaining or continuing work at his occupation of granite cutting in the said shops or works of the said Wetmore & Morse Granite Company, of Montpelier aforesaid, or in any other shops or works for the cutting of granite, did then and there threaten and say to Jacob McClure, who was then and there a laborer and workman as a granite cutter in the shops and works of the said Wetmore & Morse Granite Company, of Montpelier aforesaid, that if he, the said Jacob McClure, did not join and become a member of a branch of the National Stonecutters' Union, then and there organized and existing at said Montpelier, that they, the said Josiah B. Dyer, Thomas Quinlan, Frank Morrill, Patrick Morrison, Peter Hernon, E. D. Sherburne, H. P. Sylvester, Thomas Hocking, and Alex. Cruickshank, and others unknown to the state's attorney, would organize a strike against the said Jacob McClure in the shops and works of the said Wetmore & Morse Granite Company, of Montpelier aforesaid, and would prevent him, the said Jacob McClure, from obtaining work at his said trade of stonecutting in said shops of the said Wetmore & Morse Granite Company, of Montpelier aforesaid, or in any other shops or works where granite cutting or manufacturing was carried on. And the said Jacob McClure refusing then and there to become a member of the said branch of the National Stonecutters' Union, the said Josiah B. Dyer, Thomas Quinlan, Frank Morrill, Patrick Morrison, Peter Hernon, E. D. Sherburne, H. P. Sylvester, Thomas Hocking, and Alex. Cruickshank did then and there threaten and say to the said Wetmore & Morse Granite Company, of Montpelier aforesaid, that unless the said Jacob McClure was turned away from his employment as a granite cutter in the said shops and works of the said Wetmore & Morse Granite Company, of Montpelier aforesaid, they, the said Josiah B. Dyer, Thomas Quinlan, Frank Morrill, Patrick Morrison, Peter Hernon, E. D. Sherburne, H. P. Sylvester, Thomas Hocking, and Alex. Cruickshank, would organize a strike against the said Jacob McClure, and would prevent the said Wetmore & Morse Granite Company, of Montpelier aforesaid, from obtaining or employing any workmen or laborers in their said shops or works. And by means of said sayings and threats the said Josiah B. Dyer, Thomas Quinlan, Frank Morrill, Patrick Morrison, Peter Hernon, E. D. Sherburne, H. P. Sylvester, Thomas Hocking, and Alex. Cruickshank did then and there affright, drive away, and prevent the said Jacob McClure from obtaining and continuing his employment and labor in the said shops or works of the said Wetmore & Morse Granite Company, of Montpelier aforesaid. And so the said state's attorney, on his oath aforesaid, says that the said Josiah B. Dyer, Thomas Quinlan, Frank Morrill, Patrick Morrison, Peter Hernon, E. D. Sherburne, H. P. Sylvester, Thomas Hocking, and Alex. Cruickshank did then and there, in manner aforesaid, by threats, intimidation, and the unlawful and grievous conspiracy aforesaid, carried into execution as aforesaid, prevent the said Jacob McClure from obtaining and prosecuting his said employment and work of stonecutting in the said shops and works of the said Wetmore & Morse Granite Company, of Montpelier aforesaid, or in any other shop or works for the manufacture or cutting of granite." The other points decided sufficiently appear in the opinion.

J. P. Lamson, for the State.

Dillingham, Huse & Howland, Z. S. Stanton, John H. Senter, and W. A. Lord, for respondents.

TYLER, J. 1. It is contended that the information is insufficient. Neither count is under section 4226, R. L. That section provides that "a person who threatens violence or injury to another person with intent to prevent his employment in a mill, manufactory, shop, quarry," etc., shall be punished, etc. It evidently is not directed to cases where two or more persons act in concert, as in sections 4236 and 4237. Nor is either count under section 4227, which is directed against persons who by threats, intimidation, or force drive men from their employment, with Intent to prevent the prosecution of work in such mill, etc. The second count avers that the respondents threatened the Wetmore & Morse Granite Company that they would prevent its obtaining workmen if it did not discharge McClure, but does not aver that the threats were made with such an intent as is necessary to bring a case within section 4227. Conspiracy is an offense at common law. Bishop says it is connected with every form of wrongdoing cognizable by the law; that it is the corrupt agreeing together of two or more persons to do by concerted action something unlawful, either as a means or an end. The unlawful act must either be such as would be indictable performed by one alone, or, not being such, be of a nature particularly adapted to injure the public, or some individual, by reason of the combination. 2 Bish. Cr. Proc. § 166; 2 Bish. Cr. Law, § 171. Powers, J., said in State v. Stewart, 59 Vt. 273, 9 Atl. 559: "The reports, English and American, are full of illustrations of the doctrine that a combination of two or more persons to effect an illegal purpose, either by legal or illegal means, whether such purpose be illegal at common law or by statute; or to effect a legal purpose by illegal means, whether such means be illegal at common law or by statute,—is a common-law conspiracy. Such combinations are equally illegal whether they promote objects or adopt means that are per se indictable, or promote objects or adopt means that are per se oppressive, immoral, or wrongfully prejudicial to the rights of others,"—and cites among other authorities, 2 Russ. Crimes, "that all conspiracies whatever wrongfully to prejudice a third person are highly criminal at common law." See notes to this case in 59 Am. Rep. 710; Rex v. Mawbey, 6 Term R. 636. The counts of this information are in substantial compliance with the common-law precedents. 2 Bish. Cr. Proc. § 18. They are in all material respects like those in the indictment in...