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other individuals named, for the purpose of unlawfully removing and destroying competition among themselves, and between themselves, and others engaged in similar occupations and businesses, and for the purpose of unlawfully creating and maintaining a monopoly in the county of New York and elsewhere in the said occupations and businesses, unlawfully combined to control and monopolize in the county of New York and elsewhere the said occupations and businesses, and to exclude and prevent all other persons from engaging in said occupations and businesses, and to destroy competition in the said occupations and businesses, and each of them, and to prevent other persons by force, threats, and intimidation from exercising their lawful trades and callings in the county of New York, to wit, the said lawful trades and callings of owners and lessees of theaters, owners, and producers of plays, and booking agents.

It is also charged that the overt acts in furtherance of the conspiracy were the following: (1) The making of the agreement of August 31, 1896. (2) The making of the agreement of April 23, 1900. (3) The making of the agreement between the defendants and Felix R. Wendelschaefer on August 17, 1903, whereby the said defendants obtained the exclusive control of the bookings of a theater controlled by the said Wendelschaefer, located in the city of Providence, in the state of Rhode Island. (4) The contract made on February 7, 1905, by the defendants and Wendelschaefer for the production of a theatrical attraction by the name of May Irwin in the Providence Opera House, in Providence, R. I., this being the theater, the exclusive bookings for which had been placed in the control of the defendants. (5) The transmission of the contract last above described by the defendants to Felix R. Wendelschaefer. (6) A threat by the defendants to one Lee Shubert on or about July 1, 1905, to the effect that the defendants would refuse to permit any attractions owned by them to be produced in any of the theaters owned or controlled by the said Shubert, and would refuse to permit any of the attractions owned or controlled by said Shubert to be produced in any of the theaters controlled by the said defendants and the other parties to the agreement, unless the said Lee Shubert should break and repudiate a certain contract which was then and there existing between the said Lee Shubert and one David Belasco for the presentation by the said David Belasco of certain attractions owned by him in the theaters owned by the said Lee Shubert. (7) A threat by the defendants to one William F. Connor, in the month of December, 1905, to the effect that unless the said Connor would repudiate a certain contract which was then and there existing between him and the said Lee Shubert, under the terms of which the said Connor and the said Shubert were jointly to manage a theatrical tour in the United States for one Sarah Bernhardt, he, the said Erlanger, and the other defendants, would refuse to permit the production of any play or theatrical attraction in which the said Sarah Bernhardt should act in any of the theaters controlled by the defendants. Thereafter an order was granted for leave to the defendants to inspect the stenographic minutes of the evidence and proceedings before the grand jury.

The defendants now move to dismiss the indictment, upon the following grounds: (1) That the evidence fails to show any crime as

having been committed by the defendants herein. (2) That the crime, if any such be shown, was not committed within the county of New York, within the period prescribed by the statute of limitations. (3) That illegal, incompetent, immaterial, improper, and prejudicial evidence against the defendants was admitted upon the inquiry before the grand jury. (4) Upon all the grounds mentioned in sections 313 and 671 of the Code of Criminal Procedure of the state of New York.

To maintain the accusation against the defendants, testimony was presented to the grand jury tending to sustain the allegations of the indictment. Subdivisions 5 and 6 of section 168 of the Penal Code provide as follows:

"If two or more persons conspire, either (5) to prevent another from exercising a lawful trade or calling, or doing any other lawful act, by force, threats, intimidation, or (6) to commit any act injurious * each of them is guilty of a misdemeanor."

or commerce,

* to trade

Section 171 of the Penal Code defines an overt act, and provides as follows:

"No agreement except to commit a felony upon the person of another, or to commit arson or burglary, amounts to a conspiracy, unless some act besides such agreement be done to effect the object thereof, by one or more of the parties to such agreement."

Prior to the adoption of the Penal Code in 1881, there was no provision corresponding to subdivision 5 of section 168 of the Penal Code; this section being the creation of the authors of the Penal Code.

The defendants claim, first, that they did not conspire to prevent any person from exercising his lawful trade or calling; and, secondly, that the owning, controlling, and leasing of theaters, the producing of plays or entertainments of the stage and the booking of contracts for the production of plays, in accordance with the agreements hereinbefore referred to, is not an article of trade or commerce, and that, therefore, the defendants did not commit acts injurious to trade or commerce.

The first question to be determined is whether the defendants conspired to prevent any person from exercising his trade or calling. In the case of People ex rel. Burnham v. Flynn, 114 App. Div. 578, 100 N. Y. Supp. 31, the defendant was charged with the violation of subdivision 5 of section 168 of the Penal Code. The relator Burnham was a manager of a theater and a member of the "Theater Managers' Association of the City of New York," the members of which entered into an agreement, alleged to have constituted a criminal conspiracy, to prevent one James S. Metcalf, a dramatic critic and writer, from exercising his lawful calling of critic and writer and from entering any of the theaters managed by the association, and by the carrying out of such agreement and forcibly preventing him from entering a theater after he had purchased a ticket of admission. The Appellate Division of this Department, by a unanimous opinion, held that the defendant violated no law and discharged him from custody; the court saying:

"Assuming that the occupation of critic is a trade or calling, and that the agreement made by the relator with other members of the association, and the overt acts on the part of some of them carrying it into effect, come within the letter of the law above quoted, whether or not a crime was committed depends upon whether the agreement was a corrupt or unlawful one, and

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whether the acts employed to carry it out, by excluding the complainant from various theaters, were also unlawful. * * The relator and his associates

did not therefore enter into an unlawful agreement when they agreed amongst themselves that the complainant should not be admitted to the various theaters managed by them. If they disliked his presence, or thought his attendance was injurious to their business, they could agree that he should not be permitted to attend. If he attempted to do so, their place of amusement being their own, and being a private place so far as any individual or the public was concerned, they had a right, by such reasonable force as was necessary, to prevent him from entering. Their acts therefore in so preventing him were not unlawful acts. In People v. Kostka, 4 New York Cr. R. 429, relied upon by the respondents, the overt acts which the defendants committed were unlawful and intimidating and threatening. Any number of men may combine to do a lawful act, and such combination does not subject them to either civil or criminal liability. National Protective Association v. Cumming, 170 N. Y. 315, 63 N. E. 369, 58 L. R. A. 135, 88 Am. St. Rep. 648. It only remains to be considered whether or not the agreement entered into was actuated by the sole motive of preventing the complainant from exercising his lawful calling of critic. The resolution negatives any such idea, and there is no evidence from which it can be assumed that such was the motive of the agreement, or that such a motive actuated the subsequent acts of excluding him. The resolution dwells particularly upon the fact that complainant had been unfair in his attacks upon certain members of the association, and it is especially stated that no mention is made of criticisms on plays or business matters. Whether these attacks had been made or not, and whether they were justified or unjustified, is immaterial. If the members of the association thought they were unfair or disliked them, and desired, for that reason alone, that the complainant should not attend the various entertainments provided by them, they had a right to agree to exclude him and to carry out that agreement by refusing to admit him. It cannot be said that their sole motive in doing what they did was to prevent the complainant from exercising his lawful calling of critic. On the contrary, what was done appears to have been actuated by an unfounded or well-founded dislike of complainant and disapproval of his writings. The wisdom of the acts or the propriety or seemliness or unseemliness does not concern us. The only question to be determined is whether the acts were unlawful, and our conclusion is that the facts disclosed do not constitute the crime of conspiracy, and that the relator should have been discharged."

Tested by the principles laid down in this case, it seems that there must be a corrupt agreement between two or more individuals entered into with a criminal intent to do an unlawful act, which must be followed by the doing of an unlawful act, and that the motive for the agreement is to prevent some one from exercising a lawful trade or calling, since "a conspiracy is a combination to do an illegal act by legal means, or any act by illegal means."

The evidence presented to the grand jury disproves that such was the purpose of these defendants. The record discloses that in 1896 the defendants and other parties, being the owners and in control of certain theaters throughout the country, and engaged in the production of theatrical amusements or entertainments of the stage, entered into an agreement for a period of five years. The agreement recited that the parties were interested in or held leases of various theaters and places of amusement in the United States, and that the theatrical business, as theretofore conducted by the various parties, had resulted in great losses from indiscriminate bookings, in consequence of which similar attractions of the first class repeatedly opposed each other in the same place, and thereby injured each other by causing the public to choose be

tween them; that, unless tours were arranged in as nearly a direct line as possible, needless expense resulted from railroad fares and the too frequent hauling, backward and forward, of theatrical paraphernalia because of the geographical location of theaters and places of amusement; and that to guard against losses of a similar character, and for the benefit and protection of the parties to this agreement, each of the parties contributed some of the theaters owned or controlled by him, in order to establish a continuous chain of theaters, throughout the United States, at which their several attractions could be produced in turn, the bookings being arranged in conjunction with each other that is to say, no attraction was to be booked in any of the said theaters or places of amusement which would insist on playing in an opposition theater or place of amusement in any of the cities in which the parties to this arrangement owned or controlled theaters, unless the party having the theater or place of amusement in said competitive place should give his or their consent in writing to permit said attraction to be produced in the opposition theater or place of amusement. Another provision of the agreement bound the parties either to play their attractions in the theaters owned by the parties to the agreement, or to remain out of the cities in which said theaters or places of amusement are respectively located, unless consent to play in an opposition theater was obtained from the party having the theater at the competitive point. Each of the parties to the agreement was to perform certain duties, and the net profits and other income derived from the theaters were to be divided between them in equal shares or proportions. Provision was also made for bringing in other theaters from time to time under the terms of the contract.

On April 23, 1900, another agreement was entered into between the same parties, for a period of five years, beginning August 31, 1901, which recited, among other things, that tours had been advantageously arranged under the previous agreement, thereby saving much expense in railroad fares and in moving of companies from point to point, and that a large number of persons engaged in the theatrical business had been benefited under the first agreement, and that they were able to play their various attractions in the different cities of the United States and Canada in such a manner that other companies of the same or different class were not permitted to play against them in the same place during the same week or time, thus giving every company playing in the city full opportunity to reap all the benefits which could possibly be obtained. This agreement contains substantially the same provisions as those contained in the agreement of August 31, 1896. In accordance with the provisions of these agreements, a very large number of booking contracts have been entered into, from time to time, by the parties herein, and with third parties owning or managing plays or attractions.

In pursuance of the terms of the so-called booking contracts, the parties therein, acting as directors and agents of and for the theaters or managers thereof, agreed to furnish to the parties specified in the agreement a particular theater, with equipment and employés, for a specified period, and the owners of the attraction, in consideration thereof, agreed to furnish complete scenic properties and everything

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necessary to the proper production of the play or entertainment of the stage. The contracts contained the following stipulations:

*

"The party of the second part further agrees that without the written consent of the party of the first part, he will not allow said combination, star, or company to play or to be advertised to play or perform at any theater in the city of * * during the present season or prior to the fulfillment of this contract, or within four weeks thereafter, except on agreement indorsed on this contract. In case the party of the second part violates this condition, he hereby agrees to pay said parties of the first part as liquidated, stipulated and agreed damages, and in nowise as a penalty, the sum of one thousand dollars."

"It is finally mutually agreed, and this contract is made upon the express understanding and condition that the party of the second part will not, except upon the written consent of the first parties, book or play the attraction hereby booked in any other theater or place of amusement in the United States or Canada during the theatrical season covered by this agreement, and will only play the attraction in such theaters or places of amusement as are controlled by the parties of the first part, and for a violation of this agreement the parties of the first part may cancel the time hereby booked on one day's notice to be mailed to the last known address of the said party of the second part."

Under the agreement of 1896, no theater in the county of New York owned or controlled by the defendants, or any of the parties therein, had been contributed to the general scheme of the chain of theaters; while, under the agreement of August 31, 1901, only one theater in the county of New York, the Knickerbocker Theater, was contributed by the defendants to the general scheme of the chain of theaters.

Lee Shubert, a witness before the grand jury, testified, among other things, that he was in the business of managing and owning theatrical attractions, and managing, owning, and leasing theaters; that from 1900 until the present time he had under his control the following theaters in the county of New York: Herald Square Theater, Lyric Theater, Princess Theater, and Madison Square Theater; in Chicago, the Garrick Theater; a theater in St. Louis, and the Belasco Theater in Washington-that he successfully produced plays at his various theaters, and was also engaged in the business of booking plays or entertainments of the stage for others.

Before the grand jury the witness was asked the following:

"Q. If you were going on the road, you cannot lay out a continuous route; you have got to see-saw?"

To which question the witness replied:

"Yes; we have to. It costs us more in railroading than we can possibly take in some weeks in order to make the points."

David Belasco, another witness, among other things, testified that he was engaged in writing and producing attractions, and had been so engaged for the past 25 or 30 years; that since 1896 he had produced several plays which were performed in various theaters and places of amusement in the county of New York and in other cities of the United States; that nearly all of his plays had met with great success, and that large profits were derived therefrom; and that he had been for many years and was the lessee of the Belasco Theater in the county of New York.

The statement of Shubert, "that you cannot lay out a continuous route unless you see-saw, and that under such circumstances it costs us