§ 2946. Overt acts-Proof of not required. As the criminal conspiracy consists in the corrupt agreement or combination to commit an illegal act, or to commit some act detrimental to others by unlawful means, it is therefore evident that the crime is complete when the unlawful purpose or agreement is consummated. It is the generally recognized rule that proof of any overt acts in furtherance of the common design, is unnecessary; in seeking to establish the offense it is sufficient to prove the corrupt or the unlawful arrangement and combination without making or offering any proof whatever as to its completion or consummation. The rule is well stated as follows: "A conspiracy is in and of itself a distinct, substantive offense; complete when the corrupt agreement is entered into; the agreement is the gist of the offense. It is not necessary that any act should be done in pursuance of the agreement; nor is the offense purged because subsequent events may render the consummation of the agreement impossible, or because the conspirators are entrapped in an attempt at its consummation." It is said "the essence of the offense is the criminal combination, and no overt act is necessary to constitute it.""" This rule seems to be based on the theory that the conspirators presume that their scheme will not be discovered or frustrated, and that it will proceed until the object is attained. When their purpose is thwarted they cannot escape on the ground of innocence because the scheme miscarried.78 The rule that proof of overt acts is not required to establish the conspiracy is not intended to exclude such proof. It is competent and proper to prove such overt acts because of their bearing upon the evidence of the conspiracy itself, and for the further reason that such evidence is proper in considering the punishment to be inflicted.79 9976 $2947. Overt acts-When proof necessary. There are cases holding that under certain circumstances proof of overt acts is necessary in order to establish the crime of conspiracy. These cases are son v. State. 3 Tex. App. 590; Martens v. Reilly, 109 Wis. 464, 84 N. W. 840; United States v. Watson, 17 Fed. 145. "Thompson v. State, 106 Ala. 67, 17 So. 512; Commonwealth v. Ward, 92 Ky. 158, 17 S. W. 283; Commonwealth v. Judd, 2 Mass. 329; People V. Saunders, 25 Mich. 119; St. Louis V. Fitz, 53 Mo. 582; State v. Straw, 42 N. H. 393; People v. Mather, 4 Wend. (N. Y.) 229; Commonwealth V. Bliss, 12 Phila. (Pa.) 580; John- 9 N. W. 406. VOL. 4 ELLIOTT Ev.-14 "State v. Wilson, 30 Conn. 500. 79 Musgrave v. State, 133 Ind. 297, 32 N. E. 885. People v. Arnold, 46 Mich. 268, for the most part under particular statutes either giving a special definition for conspiracy and prescribing the proof to establish it, er where the conspiracy was to commit a misdemeanor.8° Where a statute changed the common law rule and required some proof of overt acts it was held that proof must show both the conspiracy and some overt act.81 But it has been expressly held that such overt act required to be proved need not be in itself criminal, or amount to a crime.82 It is sufficient, however, if the overt act proved was done by any one of the alleged conspirators.88 Under this rule it has been held. that a party who did not join in the original conspiracy cannot be convicted.84 § 2948. Overt acts and conspiracy merged.-There is a class of cases holding that where the proof shows that the conspiracy had been carried into execution, and the crime itself actually committed, the conspiracy is merged in the crime and there can be no conviction for the conspiracy as a separate offense. The authorities are not harmonious on this doctrine, but in a general way arrange themselves into three separate classes: (1) one class establishes the principle that when the proof shows a conspiracy to commit a higher offense and the offense is actually commited, the conspiracy is merged:85 (2) a second class holds that when the proof shows that the conspiracy and the crime are of the same grade there is no merger;86 (3) and a third So People v. Daniels, 105 Cal. 262, 38 Pac. 720; People v. Flack, 125 N. Y. 324, 26 N. E. 267. $1 People v. Sheldon, 139 N. Y. 251, 34 N. E. 785; United States v. Hirsch, 100 U. S. 33; United States v. Smith, 2 Bond (U. S.) 323; United States v. Barrett, 65 Fed. 62; United States v. Cassidy, 67 Fed. 698. 82 United States v. Thompson, 12 Sawy. (U. S.) 151. $3 United States v. Barrett, 65 Fed. 62. * United States v. Hirsch, 100 U. S. 33. Elsey v. State, 47 Ark. 572; Commonwealth v. Blackburn, 1 Duv. (Ky.) 4; State v. Mayberry, 48 Me. 218, 238; Commonwealth v. Kingsbury, 5 Mass. 106; Commonwealth v. O'Brien, 12 Cush. (Mass.) 84; People v. Richards, 1 Mich. 217; People v. Aronld, 46 Mich. 268, 9 N. W. 406; People v. Mather, 4 Wend. (N. Y.) 229, 265; State v. Noyes, 25 Vt. 415; Lambert v. People, 9 Cow. (N. Y.) 578; Elkin v. People, 28 N. Y. 177; People v. McKane, 7 Misc. (N. Y.) 478, 28 N. Y. S. 397; People v. Willis, 24 Misc. (N. Y.) 537, 54 N. Y. S. 129. Se State v Mayberry, 48 Me. 218; People v. Arnold, 46 Mich. 268, 9 N. W. 406; People v. Mather, 4 Wend. (N. Y.) 229; Orr v. People, 63 Ill. App. 305. class holds that if the proof shows the conspiracy itself is of a higher grade than the crime actually committed then there is no merger.87 $ 2949. Labor combinations-When criminal.-In recent years much discussion and litigation have arisen on the proposition of the criminality of labor combinations. It is generally conceded by law writers and courts that it is both lawful and commendable for men to associate themselves together for the purpose of bettering their condition as laborers or in a financial or social way. It has been stated that it is the genius of our free institutions that invites the citizens of the country to higher levels and better fortunes. The right is conceded to organize labor, to dictate in a way the wages for its members, and that its members may select their own associates, choose their own employers, and do whatever may be lawful or proper to advance their interests and accomplish their purposes. But on the other hand, the law, as stated by writers and recognized by courts is "that all conspiracies whatever wrongfully to prejudice a third person are wholly criminal at common law."88 The rule is thus stated by another eminent writer on criminal law: "A combination conspiracy in law whenever the act to be done has a necessary tendency to prejudice the public, or oppresses individuals, by unjustly subjecting them to the power of the confederates and giving effect to the purposes of the latter, whether of extortion or mischief." is a that § 2950. Labor combinations-Vermont rule.-The Supreme Court of Vermont, after a review of the English and American cases, practically forecloses the entire question in the following language: "The principle upon which the cases, English and American, proceed is, every man has the right to employ his talents, industry and capital as he pleases, free from the dictation of others; and if two or more persons combine to coerce his choice in his behalf, it is a criminal conspiracy. The labor and skill of the workman, be it of high or low degree, the plant of the manufacturer, the equipment of the farmer, the investments of commerce, are all in equal sense property. If men by overt acts of violence destroy either, they are guilty ST Commonwealth v. Blackburn, 62 Ky. 4; State v. Murray, 15 Me. 100; People v. Richards, 1 Mich. 217; People v. Petheram, 64 Mich. 252, 31 N. W. 188; State v. Noyes, 25 Vt. 88 2 Russell Crimes 674. 892 Wharton Cr. Law, § 2322; 2 Bishop Cr. Law, § 172; Desty Cr. Law, § 11; 3 Chitty Cr. Law 1138; Archibald Cr. Pr. & Pl. 1830. of crime. The anathemas of a secret organization of men combined for the purpose of controlling the industry of others by a species of intimidation that works upon the mind rather than the body, are quite as dangerous, and generally altogether more effective, than acts of actual violence. And while such conspiracies may give to the individual directly affected by them a private right of action for damages, they at the same time lay a basis for an indictment on the grounds that the state itself is directly concerned in the promotion of all legitimate industries and the development of all its resources, and owes the duty of protection to its citizens engaged in the exercise of their callings. The good order, peace and general prosperity of the state are directly involved in the question. . . . The exposure of a legitimate business to the control of an association that can order away its employes and frighten away others that it may seek to employ, and thus be compelled to cease the further prosecution of its work, is a condition of things utterly at war with every principle of justice, and with every safeguard of protection that citizens under our system of government are entitled to enjoy. The direct tendency of such intimidations is to establish over labor and over all industries, a control that is unknown to the law, and that is exerted by a secret association of conspirators, that is actuated solely by personal consideration, and whose plans, carried into execution, usually result in violence and the destruction of property." Substantially the same rule, stated by an English court, and adopted by the courts of many jurisdictions, is as follows: "The whole law of conspiracy, as it has been administered at least for the last hundred years, has been thus called in question; for we have sufficient proof that during that period any combination to prejudice another unlawfully has been considered. as constituting the offense so called. The offense has been held to consist in the conspiracy, and not in the acts committed for carrying it into effect; and the charge has been held to be sufficiently made in general terms describing an unlawful conspiracy to effect a bad purpose."91 § 2951. Labor combinations-Strikes, boycott and picketing. The law recognizes that labor organizations become unlawful when their members unite or combine to accomplish an unlawful purpose, or when they by combination attempt to accomplish a lawful purpose * State v. Stewart, 59 Vt. 278, 9 Atl. 559. 91 State v. Stewart, 59 Vt. 273, 9 Atl. 559. by unlawful means. When the proof shows that the object or purpose is to be accomplished in either of these ways according to the rules of law the combination becomes a criminal conspiracy. The adjudicated cases show that relief may be had by a civil action for damages, by injunction, or by criminal prosecution. It is not within the scope of this chapter to give the rules governing the introduction of evidence, or the sufficiency of the proof in establishing either the civil liability or the criminal offenses growing out of strikes, boycotts and picketings. It will be considered sufficient to refer to the cases generally involving civil actions for damages, injunctive relief and criminal prosecutions.92 Asso., 169 Mass. 229, 47 N. E. 1002; United States &c. Co. v. Iron Molders' Union, 129 Mich. 354, 88 N. W. 889; Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 55 N. W. 1119; Ertz v. Produce Exchange, 79 Minn. 140, 81 N. W. 737; Ertz v. Produce Ex change, 82 Minn. 173, 84 N. W. 743; American &c. Ins. Co. v. State, 75 "Santa Clara &c. Co. v. Hayes, 76 1077; Hartnett v. Plumbers' Supply Cal. 387, 18 Pac. 391; Vulcan &c. Co.. Hercules &c. Co., 96 Cal. 510, 31 Pac. 581; State v. Glidden, 55 Conn. 46, 8 Atl. 890; Smith v. People, 25 II. 17; People v. Chicago Gas &c. Co., 130 Ill. 268, 22 N. E. 798; More v. Bennett, 140 Ill. 69, 29 N.E. 888; Distilling &c. Co. v. Peo- Union, 118 Mich. 497, 77 N. W. 13; ple, 156 II. 448, 41 N. E. 188; Doremus. Hennessy, 176 Ill. 608, 52 N. E. 924, 54 N. E. 524; London Guarantee &c. Co. v. Horn, 206 Ill. 493, 69 N. E. 526; Bruschke v. Furniture Makers' Union, 18 Chicago Leg. News 306; Jackson v. Stanfield, 137 Ind. 592, 36 N. E. 345, 37 N. E. 14; Clem mitt v. Watson, 14 Ind. App. 38, 42 N. E. 367; Schulten v. Bavarian Brew Co., 96 Ky. 224, 28 S. W. 504; Brewster v. Miller, 101 Ky. 368, 41 S. W. 301; Heywood v. Tillson, 75 Me. 225; Perkins v. Pendleton, 90 Me. 166; Kimball v. Harman, 34 Md. 407; Lucke v. Clothing Cutters' &c., 77 Md. 396, 26 Atl. 505; Commonwealth v. Hunt, 4 Metc. (Mass.) 111; Bowen V. Matheson, 14 Allen (Mass.) 499; Carew v. Rutherford, 106 Mass. 1; Walker v. Cronin, 107 Mass. 555; Snow v. Wheeler, 113 Mass. 179; Sherry v. Perkins, 147 Mass. 212, 17 N. E. 307; Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. Miss. 24, 22 So. 99; Hamilton-Brown &c. Co. v. Saxey, 131 Mo. 212, 32 S. W. 1106; Walsh v. Association Master Plumbers, 97 Mo. App. 280, 71 S. W. 455; Mapstrick v. Ramge, 9 Neb. 390, 2 N. W. 739; McCartney v. Berlin, 31 Neb. 411, 47 N. W. 1111; State v. Burnham, 15 N. H. 396; State v. Norton, 23 N. J. L. 44; State v. Donaldson, 32 N. J. L. 151; Van Horn v. Van Horn, 52 N. J. L. 284, 20 Atl. 485; Mayer v. Journeymen &c. Asso., 47 N. J. Eq. 519, 20 Atl. 492; Barr v. Essex &c. Council, 53 N. J. Eq. 101, 30 Atl. 881; Cumberland &c. Co. v. Glass Bottle &c. Asso., 59 N. J. Eq. 49, 46 Atl. 208; Frank |