The Albany Law Journal. A Weekly Record of the Law and the Lawyers. Published by THE ALBANY LAW JOURNAL COMPANY, Albany, N. Y. Contributions, items of news about courts, judges and lawyers' queries 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 interested in legal proceedings. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] our contemporary, " upon which much stress should not be laid, at all events, unless it is clear that the accused had voluntarily abandoned his criminal intention. It may be that, although not interrupted, he was merely awaiting a good opportunity to complete his purpose when, his preparations being discovered, he was arrested. In such a case it seems rather unfortunate if it is correct law that, whatever elaborate preparations a man may have made with the intention of committing a crime, he cannot be Subscription price, Five Dollars per annum in advance. Single punished unless he has completed the series number Twenty-Five Cents. ALBANY, JUNE 2, 1900. Current Topics. A CASE arose recently in England which well illustrates the difficulty of defining what constitutes an "attempt" to commit a crime. In Reg. v. Maddock, the prisoner was indicted for attempting to commit arson. It was proved that he had placed a quantity of acts which he intended." The point made. by our London contemporary seems to us well taken. The decision is altogether too technical, and should be speedily overruled. tract. In People v. Murphy, decided on May 15, 1900, by the Criminal Court of Cook county, Ill., it was held that the act of 1893, making it a misdemeanor to prevent laborers from, or discharging them for, joining labor unions, is unconstitutional, as invading personal liberty and impairing the right of conJudge Waterman, who wrote the opinion in the case, was clearly of the opinion that the law referred to was class legislation, for the reason that if it be made a misdemeanor to dismiss an employe for such cause, it should be made an offense equally great to discharge him because he did not belong to a "Don't Worry Club," or to a "Fat Man's Club." As the Chicago Law Journal remarks, “If it be an offense punishable under the law to discharge a man because of his affiliation with labor societies, with equal reason it would be an offense to discharge him because he is a Democrat, a Republican, a Populist, or on account of his nationality or religion." of inflamable substances on the floor of a Prof. Keener, dean of the faculty of law at Columbia, after their last lecture, made in substance the following remarks to the grad The law is the noblest of professions or the meanest of trades; there is no compromise, and your first few years will irrevocably determine what it will be to you. And let me impress this fact upon you you need never do as a lawyer what you cannot do as a gentleman. Your first duty is to the public, your second to your client, and what I mean by that is this: The lawyer occupies a position of public trust, and your object should be the furtherance of justice — not the serv ing of mercenary selfishness or the promotion of litigation. And I trust no member of this class will ever refuse to aid justice because in the poor man's hand there is no fee. As it is the physician's noble calling to relieve suffering, so it is yours to give justice, and I hope none of you will make the lamentable failure to see nothing more in the law than the mere means of getting a living. If there have been any mistakes here they have been of the head and not the heart, and I can assure you that no one will be more pleased to hear of your successes or more pained to hear of any failures. I wish you well. God speed you. Such true and noble utterances are well worthy of preserving by every lawyer who loves his profession and would see it occupy the high plane to which it is entitled. which for any reason is unsuccessful, and manifestly is a crime of lesser degree if it be a crime at all - than actual suicide, is sought to be punished by imprisonment or fine, or both. This is a legal incongruity which gives the wits a splendid chance to poke fun at us,and evidently they are making the most of the opportunity. Either the law should be repealed or it should be enforced. The manner in which the courts are now "enforcing" it is nothing less than farcical. Not long ago a man who manifested his disapproval of a performance at a place of public amusement in Kansas City, Mo., by hissing, was arrested at the instance of the manager and arraigned before a police magistrate on the charge of disorderly conduct. We are told that the judge promptly disIf a man has the right to applaud in a charged the accused with the remark that "If The provision of the Code of this State which makes it a misdemeanor for any person to attempt to commit suicide continues to be a target for the newspaper paragraph-theater, he certainly has a right to hiss." This seems to be sound sense, and ought to ers, who point out that its penalties never 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 danger of being ejected for having disturbed the peace and enjoyment of the remainder of for whose benefit the performance is given, the audience. The spectators are the critics for whose benefit the performance is given, and if the management permit applause on the part of those who are pleased, they should also permit expressions of disapproval by those others who do not like it. charged after the usual farce had been enacted in police court. "Do you think this was a case of accidental falling into the water?" the magistrate is reported to have asked of the policeman who was in charge of the prisoner. "Well, perhaps so," said the policeman, obligingly. "Discharged," said the magistrate, and the would-be suicide bowed and tripped out of the court-room. The question may well be asked, "How long is New York State going to keep on its statute books such a palpable inconsistency as a law to punish an unsuccessful attempt at selfdestruction?" If the would-be suicide actually succeeds in administering the quietus so much desired, manifestly he is beyond the reach of the law, and that law does not go to the absurd extent of attempting to punish dead man; at the same time a mere attempt, tion of the defendant for burglary was improper, because his principal was not guilty, since he entered the office under the license of the prosecutors. The following is the opinion: such presence and aid would make him a confederate in the case of a real crime, it cannot render him guilty where no real crime is committed. Thus, it is held that if, in burglary, an officer or a servant, under the instructions of the owner, admits the intended burglar to the house, pretending to be in collusion with him, there is no burglary committed." Maule, J., so ruled in Reg. v. Johnson (Car. & M. 218, 41 E. C. L. 123). Ten of the twelve judges of the exchequer chamber so ruled in Dannelly's case (1 Russ. & R. 310). And this is the American doctrine (Love v. People, 160 Ill. 501, 43 N. E. 710, 32 L. R. A. 139; People v. McCord, 76 Mich. 200, 205, 42 N. W. 1106; Connor v. People, [Colo. Sup.] 33 Pac. 159, 25 L. R. A. 341). The defendant was let into the office of the owners by a decoy operating at their instance, and however reprehensible the act be morally, he is not guilty of burglary. His conviction was wrongful. EMPLOYER AND EMPLOYEES. ATTEMPTING TO PREVENT EMPLOYES FROM JOIN- THE PEOPLE V. THOMAS MURPHY. Criminal Court, Cook county. Motion to quash. (Opinion filed May 15, 1900.) Joshua Strait, a colored boy, was indicted in the Circuit Court of Lauderdale county of burglary in breaking and entering the law office of Ethridge & McBeath with intent to steal. Ethridge & McBeath were attorneys at law at Meridian, Miss., and, having a belief that their office had been often entered by some person, and having a suspicion that the defendant was such person, one or both of the prosecutors requested Green Morton to trace up the matter. Strait was the office boy at a neighboring office, and had the keys thereto of his master. Green Morton, in laying a snare for the defendant, pretended to him that he had left a bundle in the office of Ethridge & McBeath, and received from Strait the key used by him in his employment, and with it opened the office of Ethridge & McBeath, and entered the same, and the defendant, Strait, also entered with him, and, being immediately set upon, they were arrested, and the defendant being indicted and convicted of burglary, he appeals. Green Morton, in endeavoring to entrap the defendant, and in getting from him the key with which he opened the office of Ethridge & McBeath, and in leading the defendant into said office, was acting at the instance of the prosecutors, either as a decoy or as a detective, and in either case he was operating under the license of the owners, and could not have been guilty of an unlawful act; and, because Morton was not guilty of burglary, the defendant could not be guilty of burglary in entering the office at the instance and by the act of Morton. Green Morton himself opened the door of the office of Ethridge & McBeath, and, unless he is guilty of burglary as the principal felon, the defendant cannot be guilty of crime. At common law the actual doer of an illegal act amounting to felony was called a principal in the first degree, and another being with him to aid or assist in the commission of the 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, Ill. 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 in luring the defendant into a trap to be set for him (Whart. Cr. Law, sec. 117; U. S. v. Libby, I Woodb. & M. 221, Fed. Cas. No. 15.597). McClain Cr. Law, sec. 118, it is said: The only question in the case of decoys is as to whether defendant has committed a criminal act. Of course, if he has joined with one who pretends to be a confederate, but in reality is acting as a detective, and, therefore, has no criminal intent, he will not be criminally liable for acts done by the detective, although present to aid and assist: for, while In I Charles S. Deneen, State's attorney; William Prentiss and R. J. Finn, for the People. Winston & Meagher, for defendant. " Constitutional Law Act of 1893 making it a misdemeanor to prevent laborers from or discharging them for joining labor union. The Act to protect employes and guarantee their right to belong to labor organizations," approved June 17, 1893, and imposing a penalty for its violation, is unconstitutional, as invading personal liberty and impairing the right of contract. 66 'Be it enacted by the People of the State of Illinois represented in the General Assembly: That it shall be unlawful for any individual or member of any firm, or agent, officer or employe of any company or corporation to prevent, or attempt to prevent, employes from forming, joining or belonging to any lawful labor organization, and any such individual, member, agent, officer or employe that coerces or attempts to coerce employes by discharging or attempting to discharge from their employ, or the employ of any firm, company or corporation, because of their connec tion with such lawful labor organization, shall be guilty of a misdemeanor, and upon conviction shall be fined in any sum not exceeding one hundred dollars ($100.00), or be imprisoned for not more than six months, or both, in the discretion of the court." Counsel say: A man is not a man, at least not a free man, who is placed in the situation of having to choose between the privilege of uniting with his fellow-workman in a lawful organization for mutual benefit, and losing his chance, perhaps his only chance, to earn a living." If this be true it follows that a man is not a free man who is compelled to choose between uniting with a labor organization and being denied an opportunity, perhaps his only opportunity, to earn a living. One of the essentials of freedom is the right to have opinions not in harmony with those of the public authorities or of the majority. The major portion, if not all of the prejudices of mankind, are foolish, nevertheless free men are entitled to hold prejudices. The constitutional guaranty to every person of the right to freely speak, write and publish on all subjects necessarily involves the right to have opinions on all subjects however much they may be condemned either by the legislature or the public. Every citizen has a constitutional right to believe the Presbyterian, the Catholic, the Unitarian, the Mormon church or the journeymen plumber's labor organization to be prejudicial to good morals and harmful to society, and so believing he has a right to attempt to prevent the tutor of his children joining such society and to discharge such teacher if he persist in uniting. The employe is not thereby deprived of freedom; freedom does not consist in any part in a right to be employed by or work with any particular person or the members of any particular society. Nor is any person deprived either of freedom or a lawful right because the members of the Plumbers' Labor Union or the Presbyterian church, each lawful organizations, refuse to work for or associate with him. Nor under the Constitution can such refusal be made a criminal offense by a legislative act denouncing it as unlawful coercion and subjecting the offender to fine and imprisonment. It is argued by counsel that no one can have a constitutional right to coerce another into an abandonment of a lawful intention, and it is asked, "Has any man a right, guaranteed by the organic law' of this State, to force, to compel, 'to coerce' a man not to do a thing which by law it is perfectly proper for him to do?" The argument is based upon the supposed creative effect of the verb "coerce," the thought that styling an act coercion enables the legislature to render that criminal which otherwise is protected by the Constitution. By parity of reason the legislature might declare unlawful and subject to imprisonment all who should by publicly exposing the unfitness of any candidate for office coerce him into an abandonment of his candidacy. The act makes it unlawful for any individual to prevent or attempt to prevent employes from forming, joining and belonging to any lawful labor organization. Such attempt to prevent being thus declared unlawful a combination of two or more persons to so prevent would be a conspiracy, and a father and mother having agreed to unite and having joined in attempting to prevent their son from joining and belonging to a lawful labor organization might be indicted and punished for an unlawful conspiracy. The law provides that any person who coerces, or attempts to coerce, employes by discharging or attempting to discharge from his employ, or the employ of any firm, company or corporation, because of their connection with a lawful labor organization, shall be guilty of a misdemeanor. If the legislature has power to so provide, then it has power to do the converse, and may enact that any person who coerces or attempts to coerce another into joining a lawful labor organization, or who by refusing to work with any person unless he belongs to a labor organization, or who by quitting any work upon which he shall be employed because there is employed thereon a person or persons not members of a labor organization, or shall prevent or attempt by coercion to prevent any person from withdṛawing from any labor organization shall be guilty of a misdemeanor, and upon conviction shall be fined in any sum not exceeding one hundred dollars, or be imprisoned not more than six months, or both, in the discretion of the court. If such an enactment as the one under consideration is within the police power of the legislature, then a converse statute must also be within its power in its attempt to do that which the public welfare demands. The right to work and the right to contract may be thus made to depend, not upon the natural and constitutional right so to do, but upon the motive with which parties enter into or terminate contracts. The act savors much of the ancient inquisition, in that it makes unlawful not the act itself, i. e., the discharge, but the motive which prompted the act. We are to have an inquisition which shall search out and determine with what motive an employer terminates his relation with his employe, and every person who discharges a servant subjects himself to inquiry as to whether his motives for the discharge were not such as the law pronounces criminal. If this act be valid we may hereafter have legislation under which the criminal courts will enter upon an inquiry as to whether the motive which any man had for quitting work was lawful or such as subjects him to fine and imprisonment. Among the natural rights of man is the right to labor. Deprived of this, all other rights are of little consequence. The public authorities have resting upon them no more important obligation than the defense of the right to labor and the protection of the laborer. By what is not infrequently spoken of as the rights of labor" is meant the rights of the laborer, among which that of protection in his endeavor to secure employment and in his toil as a laborer is of first importance. Whatever, therefore, is apparently or purports to be an attempt to protect the laborer as such, cannot be lightly treated. Liberty includes the right to acquire property and also includes the right to make, to enforce and to terminate contracts, subject only to such civil obligations as may ensue from such making and such termination. Liberty includes not only the right to labor, but to refuse to labor, and consequently the right to contract to labor and to terminate such contract; in other words, to break it. A law which made the refusal to perform work which one had contracted to do a crime would in effect often result in a re-establishment of slavery by contract. The ability to do work is a property right. The laborer has the same right to sell his property, namely, his labor, that the capitalist has to sell his wheat, his horse or any other kind of tangible property which he possesses. The Constitution provides that no person shall be deprived of life, liberty or property except by due process of law. Within the meaning of this provision an act of the legislature is not due process of law. It therefore follows that in this country the legislature has no power to prevent persons who are sui juris from laboring or from making such contracts as they may see fit relative to their own lawful labor, nor any power by penal laws to prevent any person, with or without cause, from refusing to carry out such contracts. Such refusal can at the most but render the laborer liable to respond in a civil action for an unwarranted refusal to do that which he had undertaken. Consequently the legislature has no power to prevent | persons, sui juris, from contracting as they may see fit for labor for any lawful purpose, nor any power by penal laws to prevent any person, with or without cause, from refusing to carry out such contracts. The right to hire labor and the right of the laborer to work and to agree so to do, the right to discharge and the right to abandon service are all essential parts of the property right of contract and protected by the Constitution. Nor can these rights be destroyed or impaired by legislation pronouncing criminal a discharge or refusal to work for what is legislatively declared to be an unlawful or unworthy motive. (Ritchie v. People, 155 Ill. 98; Millett v. People, 117 Ill. 294; Ramsey v. People, 142 Ill. 380; Frorer v. People, 141 Ill. 171; Harding v. People, 160 Ill. 459; Coal Co. v. People, 147 Ill. 66; Adams v. Brenan, 117 Ill. 194 [?]; State v. Julow, 129 Mo. 163; s. c., 29 L. R. A. 259; Commonwealth v. Perry, 155 Mass. 117.) The motion to quash the indictment is sustained. Motion sustained. FALSE IMPRISONMENT - DAMAGES. NEW YORK SUPREME COURT APPELLATE DIVI- April, 1900. CHARLES H. VAN BRUNT, P. J.; WILLIAM RUM- LOUISE VERGNES STEVENS, Respondent, v. HUGH No. 2109. May 11, 1900. Appeal from judgment entered upon a verdict and from order denying motion for new trial. Mr. E. W. S. Johnston, for appellant. Mr. Gilbert Ray Hawes, for respondent. - VAN BRUNT, P. J. This action was brought to recover damages for an alleged false imprisonment. The answer was in effect a general denial. The questions raised upon this appeal may be embraced within two classes: First, whether there was evidence enough to justify the jury in finding that there was any false imprisonment, and second, whether there were any errors committed in the charge of the learned justice who tried the case. It is claimed upon the part of the appellant that there was no evidence that any restraint was exercised by the defendant or his employes as against the plaintiff, and that her submission to search was entirely voluntary upon her part. It appears from the evidence of the plaintiff that she visited the store of the defendant in the city of New York on the 15th day of December, 1897; that she went to the jewelry counter and asked the salesgirl to show her some watches. The girl showed her some which were very bright in color, and the plaintiff then asked if she had not some more subdued in character, and the girl said no. "Then she counted the watches; she said there were so many in the case when I showed them to you; now, she says, there is one missing. Well, I said, probably you have sold the watch, never thinking she thought I was the thief. Then she sent for the floor walker, and then he sent for the detective, and she said I would have to be searched." The plaintiff repeated the testimony that when the woman detective came up she said, “ You will have to be searched; ' that then the detective sent for a man, and they took the plaintiff through the store between this man and the detective to the elevator and went upstairs into a small room, where she was searched. It is claimed upon the part of the appellant that the plaintiff asked to be searched upon the supposition that she was suspected of being the thief, and that she was willing and submitted to search for the purpose of clearing herself from suspicion, and that no restraint whatever was exer |