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The Albany Law Journal.


our contemporary,“ upon which much stress should not be laid, at all events, unless it is clear that the accused had voluntarily aban

doned his criminal intention. It may be A Weekly Record of the Law and the Lawyers. Published by that, although not interrupted, he TE ALBANY LAW JOURNAL COMPANY, Albany, N. Y.

Contributions, items of news about courts, judges and lawyers' merely awaiting a good opportunity to comqueries or comments, criticisms on various law questions, addresses on legal topics, or discussions on questions of timely interest are solicited from members of the bar and those inter.

plete his purpose when, his preparations ested in legal proceedings.

being discovered, he was arrested. In such (All communications intended for the Editor should be ad.

a case it seems rather unfortunate if it is dressed simply to the Editor of THE ALBANY LAW JOURNAL correct law that, whatever elaborate preparaAll letters relating to advertisements, subscriptions, or other boginess matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.)

tions a man may have made with the inten

tion of committing a crime, he cannot be Subscription price, Five Dollars per aonom in advance. Single oomber Twenty-Five Conts.

punished unless he lias completed the series

of acts which he intended.” The point made ALBANY, JUNE 2, 1900.

by our London contemporary seems to us

well taken. The decision is altogether too Current Topics.

technical, and should be speedily overruled.



CASE arose recently in England which

In People v. Murphy, decided on May 15, well illustrates the difficulty of defining 1900, by the Criminal Court of Cook county, what constitutes an attempt ” to commit a

I11., it was held that the act of 1893, making crime. In Reg. v. Maddock, the prisoner it a misdemeanor to prevent laborers from, was indicted for attempting to commit arson.

or discharging them for, joining labor It was proved that he had placed a quantity unions, is unconstitutional, as invading perof inflamable substances on the floor of a sonal liberty and impairing the right of concertain house, saturated them with methyl- tract. Judge Waterman, who wrote the ated spirits, and placed a freshly trimmed opinion in the case, was clearly of the opincandle in the midst. Not having lighted the ion that the law referred to was class legislacandle, it was argued, on the motion to

tion, for the reason that if it be made a quash the indictment, that the prisoner had misdemeanor to dismiss an employe for such merely made preparations to commit a fel-cause, it should be made an offense equally ony, and had not gone far enough for his great to discharge him because he did not acts to constitute an attempt in law, and that belong to a “Don't Worry Club," or to a in order to convict of an attempt the prisoner

“ Fat Man's Club.” As the Chicago Law must be shown to have done the last act de- Journal remarks, “ If it be an offense punpending on himself, with the intention to ishable under the law to discharge a man becommit the offense. On the other hand, it

cause of his affiliation with labor societies, was argued that the acts of the prisoner with equal reason it would be an offense to clearly showed what his intentions were, and discharge him because he is a Democrat, a were sufficiently proximate to the commis- Republican, a Populist, or on account of his sion of the offense to amount to an attempt. nationality or religion.” Lawrance, J., quashed the indictment, and refused to state a case, holding that as some

Prof. Keener, dean of the faculty of law thing remained to be done by the prisoner,

at Columbia, after their last lecture, made in and there was no interruption, that what he substance the following remarks to the graddid was not an attempt in law. The Solici- uating class: tors' Journal, in our opinion with excellent

The law is the noblest of professions or the

meanest of trades; there is no compromise, and reason, questions the correctness of this de

your first few years will irrevocably determine cision, which it thinks makes altogether too what it will be to you. And let me impress this much turn on the point whether or not there fact upon you — you need never do as a lawyer was interruption. “This is a point,” says what you cannot do as a gentleman. Your first

VOL. 61 – No. 22.

duty is to the public, your second to your client, which for any reason is unsuccessful, and and what I mean by that is this: The lawyer occu- manifestly is a crime of lesser degree if it pies a position of public trust, and your object be a crime at all — than actual suicide, is should be the furtherance of justice — not the serving of mercenary selfishness or the promotion of sought to be punished by imprisonment or litigation. And I trust no member of this class fine, or both. This is a legal incongruity will ever refuse to aid justice because in the poor which gives the wits a splendid chance to man's hand there is no fee. As it is the physician's poke fun at us and evidently they are maknoble calling to relieve suffering, so it is yours to ing the most of the opportunity. Either the give justice, and I hope none of you will make the lamentable failure to see nothing more in the

law should be repealed or it should be enlaw than the mere means of getting a living forced. The manner in which the courts are If there have been any mistakes here they have now “enforcing” it is nothing less than been of the head and not the heart, and I can farcical. assure you that no one will be more pleased to hear of your successes or more pained to hear of

Not long ago a man who manifested his any failures. I wish you well. God speed you.

disapproval of a performance at a place of Such true and noble utterances are well public amusement in Kansas City, Mo., by worthy of preserving by every lawyer who lissing, was arrested at the instance of the loves his profession and would see it occupy manager and arraigned before a police magthe high plane to which it is entitled.

istrate on the charge of disorderly conduct. The provision of the Code of this State We are told that the judge promptly diswhich makes it a misdemeanor for any per-charged the accused with the remark that son to attempt to commit suicide continues “If a man has the right to applaud in a to be a target for the newspaper paragraph-theater, he certainly has a right to hiss.” ers, who point out that its penalties never

This seems to be sound sense, and ought to have been visited upon any of the numerous

be equally good law. Applause is the usual persons who have rendered themselves mark of approval, and its antithesis, the hiss, amenable thereto, although the courts go

is the customary way of indicating disapthrough the pretence of trying them. The proval of a play, act or scene. The audience Boston Herald cites a recent illustrative case

is not permitted to give articulate expression in New York city, where a man who had

to its pleasure or displeasure no one can deliberately jumped into the sea, and was

get up in the auditorium and give his ideas unwillingly rescued, was promptly dis- of the play or the players without imminent charged after the usual farce had been en

danger of being ejected for having disturbed acted in police court. “Do you think this the peace and enjoyment of the remainder of was a case of accidental falling into the

the audience. The spectators are the critics water?” the magistrate is reported to have for whose benefit the performance is given, asked of the policeman who was in charge of the part of those who are pleased, they

and if the management permit applause on the prisoner. "Well, perhaps so," said the policeman, obligingly. “Discharged,” said

should also permit expressions of disapthe magistrate, and the would-be suicide proval by those others who do not like it. bowed and tripped out of the court-room. The question may well be asked, “ How long

Notes of Cases. is New York State going to keep on its stat

Criniinal Law ute books such a palpable inconsistency as a

Principal and Accessory. — In

Strait v. State, decided by the Supreme Court of law to punish an unsuccessful attempt at self- Mississippi in April, 1900, it appeared that the destruction?” If the would-be suicide actu- prosecutors had reason to believe their office had ally succeeds in administering the quietus so

been entered by defendant, and hired a detective much desired, manifestly he is beyond the

to investigate the matter, and, under the pretense reach of the law, and that law does not go to

of getting a bundle he had left, the detective bor

rowed defendant's key and entered the office, acthe absurd extent of attempting to punish a companied by the defendant, when they were dead man; at the same time a mere attempt, I immediately arrested. It was held that a convic

tion of the defendant for burglary was improper, such presence and aid would make him a confedbecause his principal was not guilty, since he en- erate in the case of a real crime, it cannot render tered the office under the license of the prosecil- him guilty where no real crime is committed. tors. The following is the opinion:

Thus, it is held that is, in burglary, an officer or a Joshua Strait, a colored boy, was indicted in the servant, under the instructions of the owner, adCircuit Court of Lauderdale county of burglary in

mits the intended burglar to the house, pretending breaking and entering the law office of Ethridge to be in collusion with him, there is no burglary & McBeath with intent to steal. Ethridge & Mc-committed.” Maule, J., so ruled in Reg. v. JohnBeath were attorneys at law at Meridian, Miss., son (Car. & M. 218, 41 E. C. L. 123). Ten of the and, having a belief that their office had been often twelve judges of the exchequer chamber so ruled entered by some person, and having a suspicion in Dannelly's case (1 Russ. & R. 310). And this that the defendant was such person, one or both is the American doctrine (Love v. People, 160 III. of the prosecutors requested Green Morton to 501, 43 N. E. 710, 32 L. R. A. 139; People v. trace up the matter. Strait was the office boy at a McCord, 76 Mich. 200, 205, 42 N. W. 1106; Conneighboring office, and had the keys thereto of his nor v. People, (Colo. Sup.) 33 Pac. 159, 25 L. R. master. Green Morton, in laying a snare for the | A. 341). The defendant was let into the office of defendant, pretended to him that he had left a the owners by a decoy operating at their instance, bundle in the office of Ethridge & McBeath, and and however reprehensible the act be morally, he received from Strait the key used by him in his is not guilty of burglary. His conviction was employment, and with it opened the office of wrongsul. Ethridge & McBeath, and entered the same, and the delendant, Strait, also entered with him, and,

EMPLOYER AND EMPLOYEES. being immediately set upon, they were arrested, and the defendant being indicted and convicted of

ATTEMPTING TO PREVENT EMPLOYES FROM JOINburglary, he appeals. Green Morton, in endeavor- ING OR BELONGING TO LABOR ORGANIZATION ng to entrap the defendant, and in getting from - Sec. 32, CHAP. 48, ILLINOIS Rev. Stat. him the key with which he opened the office of

INVALID. Ethridge & McBeath, and in leading the defendant into said office, was acting at the instance of the

THE PEOPLE V. THOMAS MURPHY. prosecutors, either as a decoy or as a detective, Criminal Court, Cook county. Motion to quash. and in either case he was operating under the

(Opinion filed May 15, 1900.) license of the owners, and could not have been guilty of an unlawful act; and, because Morton Charles S. Deneen, State's attorney; William was not guilty of burglary, the defendant could not Prentiss and R. J. Finn, for the People. Winston be guilty of burglary in entering the office at the & Meagher, for defendant. instance and by the act of Morton, Green Morton

Constitutional Law -- Act of 1893 making it a himself opened the door of the office of Ethridge misdemeanor to prevent laborers from or dis& McBeath, and, unless he is guilty of burglary charging them for joining labor union. The as the principal felon, the defendant cannot be

Act to protect employes and guarantee their guilty of crime. At common law the actual doer right to belong to labor organizations," approved of an illegal act amounting to felony was called a

June 17, 1893, and imposing a penalty for its vioprincipal in the first degree, and another being lation, is unconstitutional, as invading personal with him to aid or assist in the commission of the liberty and impairing the right of contract. act is denominated a principal in the second degree, and a principal in the second degree could WATERMAN, J. — The indictment in this case is only be guilty of the crime committed by the based upon sec. 32, chap. 48, I11. Rev. Stat. (Hurd's principal in the first degree. It is plain that Mor-Ed.), which was brought into existence by an act ton is not guilty of burglary, because he was acting of the legislature in force July 1st, 1893. The act at the instance of the prosecutors, and he was ex- is as follows: pected by the prosecutors to use his own judgment 'Be it enacted by the People of the State of in luring the defendant into a trap to be set for Illinois represented in the General Assembly: him (Whart. Cr. Law, sec. 117; U. S. v. Libby, I That it shall be unlawful for any individual or Woodb. & M. 221, Fed. Cas. No. 15,597). In 1 member of any firm, or agent, officer or employe McClain Cr. Law, sec. 118, it is said: “The only of any company or corporation to prevent, or atquestion in the case of decoys is as to whether tempt to prevent, employes from forming, joining defendant has committed a criminal aci. Of or belonging to any lawful labor organization, and course, if he has joined with one who pretends to any such individual, member, agent, officer or be a confederate, but in reality is acting as a detec-employe that coerces or attempts to coerce emtive, and, therefore, has no criminal intent, he will ployes by discharging or attempting to discharge not be criminally liable for acts done by the detec- from their employ, or the employ of any firm, tive, although present to aid and assist: for, while I company or corporation, because of their connec



tion with such lawful labor organization, shall be unfitness of any candidate for office coerce him guilty of a misdemeanor, and upon conviction into an abandonment of his candidacy. shall be fined in any sum not exceeding one hun- The act makes it unlawful for any individual to dred dollars ($100.00), or be imprisoned for not prevent or attempt to prevent employes from more than six months, or both, in the discretion forming, joining and belonging to any lawful labor of the court."

organization. Such attempt to prevent being thus Counsel say:

A man is not a man, at least not declared unlawful a combination of two or more a free man, who is placed in the situation of hav- persons to so prevent would be a conspiracy, and ing to choose between the privilege of uniting a father and mother having agreed to unite and with his fellow-workman in a lawful organization having joined in attempting to prevent their son for mutual benefit, and losing his chance, perhaps from joining and belonging to a lawiul labor orhis only chance, to earn a living."

ganization might be indicted and punished for an If this be true it follows that a man is not a free unlawful conspiracy. The law provides that any man who is compelled to choose between uniting person who coerces, or attempts to coerce, emwith a labor organization and being denied an ployes by discharging or attempting to discharge opportunity, perhaps his only opportunity, to earn from his employ, or the employ of any firm, coma living. One of the essentials of freedom is the pany or corporation, because of their connection right to have opinions not in harmony with those with a lawful labor organization, shall be guilty of of the public authorities or of the majority. The a misdemeanor. If the legislature has power to so major portion, if not all of the prejudices of man- provide, then it has power to do the converse, and kind, are foolish, nevertheless free men are entitled may enact that any person who coerces or atto hold prejudices. The constitutional guaranty to tempts to coerce another into joining a lawiul every person of the right to freely speak, write and labor organization, or who by refusing to work publish on all subjects necessarily involves the with any person unless he belongs to a labor orright to have opinions on all subjects however ganization, or who by quitting any work upon much they may be condemned either by the legis- which he shall be employed because there is emlature or the public. Every citizen has a constitu-ployed thereon a person or persons not members tional right to believe the Presbyterian, the of a labor organization, or shall prevent or attempt Catholic, the Unitarian, the Mormon church or by coercion to prevent any person from withdrawthe journeymen plumber's labor organization to ing from any labor organization shall be guilty of be prejudicial to good morals and harmful to so- a misdemeanor, and upon conviction shall be fined ciety, and so believing he has a right to attempt in any sum not exceeding one hundred dollars, or to prevent the tutor of his children joining such be imprisoned not more than six months, or both, society and to discharge such teacher if he persist in the discretion of the court. in uniting. The employe is not thereby deprived If such an enactment as the one under considerof freedom; freedom does not consist in any partation is within the police power of the legislature, in a right to be employed by or work with any then a converse statute must also be within its particular person or the members of any particular power in its attempt to do that which the public society. Nor is any person deprived either of welfare demands. The right to work and the freedom or a lawful right because the members right to contract may be thus niade to depend, not of the Plumbers' Labor Union or the Presbyterian upon the natural and constitutional right so to do, church, each lawful organizations, refuse to work but upon the motive with which parties enter into for or associate with him. Nor under the Consti- or terminate contracts. The act savors much oi tution can such refusal be made a criminal offense the ancient inquisition, in that it makes unlawful by a legislative act denouncing it as unlawful coer- not the act itself, i. e., the discharge, but the cion and subjecting the offender to fine and im- motive which prompted the act. We are to have prisonment.

an inquisition which shall search out and deterIt is argued by counsel that no one can have a mine with what motive an employer terminates his constitutional right to coerce another into an relation with his employe, and every person who abandonment of a lawsul intention, and it is asked, discharges a servant subjects himself to inquiry as “ Has any man a right, "guaranteed by the or- to whether his motives for the discharge were not ganic law' of this State, to force, to compel, 'to such as the law pronounces criminal. If this act coerce' a man not to do a thing which by law it is be valid we may hereafter have legislation under perfectly proper for him to do?” The argument which the criminal courts will enter upon an inis based upon the supposed creative effect of the quiry as to whether the motive which any man verb “coerce," the thought that styling an had for quitting work was lawful or such as subcoercion enables the legislature to render that jects him to fine and imprisonment. criminal which otherwise is protected by the Con- Among the natural rights of man is the right to stitution. By parity of reason the legislature labor. Deprived of this, all other rights are of might declare unlawful and subject to imprison- little consequence. The public authorities have ment all who should by publicly exposing the resting upon them no more important obligation


No. 2109.

than the defense of the right to labor and the pro

FALSE IMPRISONMENT - DAMAGES. tection of the laborer. By what is not infrequently spoken of as the “rights of labor" is

NEW YORK SUPREME COURT APPELLATE DIVImeant the rights of the laborer, among which that

SION —— FIRST DEPARTMENT. of protection in his endeavor to secure employment and in his toil as a laborer is of first import

April, 1900. ance. Whatever, therefore, is apparently or pur- | CHARLES H. VAN BRUNT, P. J.; William Rumports to be an attempt to protect the laborer as

SEY, GEORGE L. INGRAHAM, CHESTER B. Mcsuch, cannot be lightly treated.

LAUGHLIN, JJ. Liberty includes the right to acquire property and also includes the right to make, to enforce

LOUISE VERGNES STEVENS, Respondent, v. HUGH and to terminate contracts, subject only to such

O'NEILL, Appellant. civil obligations as may ensue from such making

May II, 1900. and such termination. Liberty includes not only the right to labor, but to refuse to labor, and con

Appeal from judgment entered upon a verdict sequently the right to contract to labor and to

and from order denying motion for new trial. terminate such contract; in other words, to break Mr. E. W. S. Johnston, for appellant. Mr. Gilit. A law which made the refusal to perform work bert Ray Hawes, for respondent. which one had contracted to do a crime would in effect often result in a re-establishment of slavery VAN BRUNT, P. J. -- This action was brought to by contract. The ability to do work is a property recover damages for an alleged false imprisonright. The laborer has the same right to sell his ment. The answer was in effect a general denial. property, namely, his labor, that the capitalist has The questions raised upon this appeal may be to sell his wheat, his horse or any other kind of embraced within two classes: First, whether there tangible property which he possesses. The Con- was evidence enough to justify the jury in finding stitution provides that no person shall be de- that there was any false imprisonment, and second, prived of life, liberty or property except by due whether there were any errors committed in the process of law. Within the meaning of this pro- charge of the learned justice who tried the case. vision an act of the legislature is not due process It is claimed upon the part of the appellant that of law. It therefore follows that in this country there was no evidence that any restraint was exerthe legislature has no power to prevent persons cised by the defendant or his employes as against who are sui juris from laboring or from making the plaintiff, and that her submission to search was such contracts as they may see fit relative to their entirely voluntary upon her part. It appears from own lawful labor, nor any power by penal laws to the evidence of the plaintiff that she visited the prevent any person, with or without cause, from store of the defendant in the city of New York on refusing to carry out such contracts. Such refusal the 15th day of December, 1897; that she went to can at the most but render the laborer liable to the jewelry counter and asked the salesgirl to respond in a civil action for an unwarranted re- show her some watches. The girl showed her íusal to do that which he had undertaken. Con- some which were very bright in color, and the sequently the legislature has no power to prevent plaintiff then asked if she had not some more subpersons, sui juris, from contracting as they may dued in character, and the girl said no.

“ Then see fit for labor for any lawful purpose, nor any she counted the watches; she said there were so power by penal laws to prevent any person, with many in the case when I showed them to you; or without cause, from refusing to carry out such now, she says, there is one missing. Well, I said, contracts. The right to hire labor and the right probably you have sold the watch, never thinking of the laborer to work and to agree so to do, the she thought I was the thief. Then she sent for right to discharge and the right to abandon service the floor walker, and then he sent for the detective, are all essential parts of the property right of and she said I would have to be searched.” The contract and protected by the Constitution. Nor plaintiff repeated the testimony that when the can these rights be destroyed or impaired by legis- woman detective came up she said, “ You will have lation pronouncing criminal a discharge or refusal to be searched;" that then the detective sent for to work for what is legislatively declared to be an a man, and they took the plaintiff through the unlawful or unworthy motive. (Ritchie v. People, store between this man and the detective to the 155 III. 98; Millett v. People, 117 III. 294; Ramsey elevator and went upstairs into a small room, v. People, 142 Ill. 380; Frorer v. People, 141 III. where she was searched. 171; Harding v. People, 160 I11. 459; Coal Co. v. It is claimed upon the part of the appellant that People, 147 111. 66; Adams v. Brenan, 117 III. the plaintiff asked to be searched upon the sup194 [?]; State v. Julow, 129 Mo. 163; S. C., 29 L. R. position that she was suspected of being the thief, A. 259; Commonwealth v. Perry, 155 Mass. 117.) and that she was willing and submitted to search

The motion to quash the indictment is sustained. for the purpose of clearing herself from susMotion sustained.

picion, and that no restraint whatever was exer

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