Page images
PDF
EPUB
[ocr errors]
[ocr errors]

one

Mr. William Wallace, Assistant Attor- , both may be furnished by the same single ney General, for plaintiff in error:

happening. Where the substantive offense requires State v. Crofford, 133 Iowa, 480, 110 N. combination for its commission, the same W. 921; Gavieres v. United States, 220 U. combination cannot be also used as the S. 342, 55 L. ed. 490, 31 Sup. Ct. Rep. 421. basis of a conspiracy charge; i. e., the pros- The later consummation of the main ofecutor may not split the substantive offense fense by Laudenschleger could not swallow into elements and frame an indictment on up, or give immunity to, the earlier comone element. But where the substantive pleted crime of conspiracy. offense may be consummated without a Heike v. United States, 227 U. S. 131, combination, the addition of that element 144, 57 L. ed. 450, 455, 33 Sup. Ct. Rep. furnishes the additional ingredient distin- 226, Ann. Cas. 1914C, 128; Curley v. United guishing conspiracy from the substantive States, 64 C. C. A. 369, 130 Fed. 1; United offense, and makes it lawful to indict for States v. Stamatopoulos, 164 Fed. 524; Soeither or both.

lander v. People, 2 Colo. 48; State v. CrofChadwick v. United States, 72 C. C. A. ford, 133 Iowa, 478, 110 N. W. 921. 343, 141 Fed. 236; United States v. New Though the penalty provisions of the York C. & H. R. R. Co. 146 Fed. 303; Ex crime punished by § 2 were limited excluparte Lyman, 202 Fed. 303; Reg. v. Whit- sively to procurers, no corresponding limichurch, L. R. 24 Q. B. Div. 420, 59 L. J. tation is to be found in § 37, which, being Mag. Cas. N. S. 77, 62 L. T. N. S. 124, 38 aimed at every person, must apply to the Week. Rep. 336, 16 Cox, C. C. 743, 54 J. defendant Holte. P. 472, 8 Am. Crim. Rep. 1; State v. Crof- United States v. Portale, 235 U. S. 27, ford, 133 Iowa, 478, 110 N. W. 921.

59 L. ed. 35 Sup. Ct. Rep. 1; United Guilty complicity on the part of the States v. Lewis, 235 U. S. 282, 59 L. ed. woman transported is not a necessary in 35 Sup. Ct. Rep. 44. gredient of the substantive offense.

No appearance for defendant in error. Hoke v. United States, 227 U. S. 320, 57 L, ed. 526, 43 L.R.A. (N.S.) 906, 33 Sup. Mr. Justice Holmes delivered the opinCt. Rep. 281, Ann. Cas. 1913E, 905; Bennett ion of the court: v. United States, 114 C. C. A. 402, 194 Fed. This is an indictment for a conspiracy 630, affirmed in 227 U. S. 333, 57 L. ed. between the present defendant and 531, 33 Sup. Ct. Rep. 288; United States v. Laudenschleger that Laudenschleger should Westman, 182 Fed. 1017.

cause the defendant to be transported from If the act prohibited by each statute de Illinois to Wisconsin for the purpose of mands for its accomplishment the doing of prostitution, contrary to the act of June the same things, then there is legal identity. 25, 1910, chap. 395, 36 Stat. at L. 825, If, however, any element is demanded by Comp. Stat. 1913, § 8812. As the defendeither that is not essential to the other, ant is the woman, the district court susthen they are separately punishable as dif- tained a demurrer on the ground that alferent offenses, even though the elements of though the offense could not be committed the law to be that the “woman always is , way overthrows the premise of the minority. the victim," then its one illustration has The fact that individual cases arise in no force, or at least it is not of sufficient which the woman is not the victim does not force to overcome the arguments and facts disprove the statement that Congress based produced by the minority. Secondly, the the law upon the theory that the woman minority say that the woman had to be con- is the victim, any more than it proves that sidered an object of traffic in interstate the state legislature did not pass the statucommerce in order to sustain the constitu- tory rape act on the theory that the girl tionality of the statute (see Hoke v. United is the victim. The minority produced some States, 43 L.R.A. (N.S.) 906, note), hence very convincing arguments in support of Congress has no jurisdiction to punish her their premise. It is to be regretted that on the theory that she is not an object of the majority did not attack these argutraffic, but a free agent responsible for her i ments and show that Congress did not act own transportation. There is no comment upon the theory that the woman is the vicby the majority on this point.

tim. In this way only could they logically To summarize what has been said, supra, avoid the conclusion of the minority. it may be added :

(1) If the premise of In the dissenting opinion it is also timethe minority (that the statute was passed ly suggested that the holding by the maupon the theory that the woman is the vic jority will likely hamper the government tim) is conceded, their conclusion seems to in prosecutions in the matter of introbe irresistible. It matters not whether the ducing evidence, the woman transported theory is an illusion or not if Congress now being able to refuse to testify on the based the statute upon it, for in that case ground that she may incriminate herself. the courts cannot abandon it. (2) The ma

J. W. M. jority produced no argument that in any

without her, she was no party to it, but, tion upon herself when, under the law, she only the victim. The single question is could not commit the substantive crime; whether that ruling is right. We do not and therefore, it has been held could not be have to consider what would be necessary an accomplice. Reg. v. Whitchurch, L. R. to constitute the substantive crime under 24 Q. B. Div. 420, 422, 59 L. J. Mag. Cas. the act of 1910, or what evidence would be N. S. 77, 62 L. T. N. S. 124, 38 Week. Rep. required to convict a woman under an in. 336, 16 Cox, C. C. 743, 54 J. P. 472, 8 Am. dictment like this; but only to decide Crim. Rep. 1; Solander v. People, 2 Colo. whether it is impossible for the transported 48, 63; State v. Crofford, 133 Iowa, 478, woman to be guilty of a crime in conspiring 480, 110 N. W. 921. as alleged.

So we think that it would be going too The words of the Penal Code of March 4, far to say that the defendant could not be 1909, chap. 321, § 37 [35 Stat. at L. 1096, guilty in this case. Suppose, for instance, Comp. Stat. 1913, § 10,201), are "conspire that a professional prostitute, as well able

to commit any offense against the to look out for herself as was the man, United States ;” and the argument is that should suggest and carry out a journey they mean an offense that all the conspira within the act of 1910 in the hope of blacktors could commit; and that the woman mailing the man, and should buy the railcould not commit the offense alleged to be road tickets, or should pay the fare from the object of the conspiracy. For although Jersey City to New York,-she would be the statute of 1910 embraces matters to within the letter of the act of 1910, and we which she could be a party, if the words see no reason why the act should not be are taken literally, for instance, aiding in held to apply. We see equally little reaprocuring any form of transportation for son for not treating the preliminary agreethe purpose, the conspiracy alleged, as we ment as a conspiracy that the law can have said, is a conspiracy that Lauden reach, if we abandon the illusion that the schleger should procure transportation and woman always is the victim. The words of should cause the woman to be transported. the statute punish the transportation of a Of course, the words of the Penal Code woman for the purpose of prostitution even could be narrowed as we have suggested, if she were the first to suggest the crime. but in that case they would not be as broad The substantive offense might be committed as the mischief; and we think it plain that without the woman's consent; for instance, they mean to adopt the common law as to if she were drugged or taken by force. conspiracy, and that "commit” means no Therefore the decisions that it is impossible more than bring about. For, as was ob- to turn the concurrence necessary to effect served in Drew v. Thaw (Dec. 21, 1914) certain crimes such as bigamy or duelling (235 U. S. 432, 59 L. ed. -, 35 Sup. Ct. into a conspiracy to commit them do not Rep. 137], a conspiracy to accomplish what apply. an individual is free to do may be a crime Judgment reversed. (Reg. v. Mears, 4 Cox, C. C. 423, 2 Den. C. C. 79, Temple & M. 414, 20 L. J. Mag. Mr. Justice McReynolds took no part Cas. N. S. 59, 15 Jur. 66; Reg. v. Howell, 4 in the consideration and decision of this Fost. & F. 160); and even more plainly a case. person may conspire for the commission of a crime by a third person. We will assume Mr. Justice Lamar, dissenting: that there may be a degree of co-operation I dissent from the conclusion that a that would not amount to a crime, as where woman can be guilty of conspiring to have it was held that a purchase of spirituous li. herself unlawfully transported in interstate quor from an unlicensed vendor was not a commerce for purposes of prostitution. crime in the purchaser, although it was in Congress had no power to punish immorthe seller. Com. v. Willard, 22 Pick. 476. ality, and certainty did not intend by this But a conspiracy with an officer or em- act of June 25, 1910 (36 Stat. at L. 825, ployee of the government or any other for chap. 395, Comp. Stat. 1913, § 8812), to an offense that only he could commit has make fornication or adultery, which was a been held for many years to fall within state misdemeanor, a Federal felony, pun. the conspiracy section, now $ 37, of the ishable by $5,000 fine and five years' imPenal Code. United States v. Martin, 4 prisonment. But when it appeared that Cliff. 156, 164, Fed. Cas. No. 15,728; United there was a traffic in women to be used for States v. Bayer, 4 Dill. 407, 410, Fed. Cas. purposes of prostitution, debauchery, and No. 14,547 ; United States v. Stevens, 44 immoral purposes, Congress legislated so as Fed. 132, 140; State ex rel. urner v. Hue- to prohibit thei interstate transportation gin, 110 Wis. 189, 246, 62 L.R.A. 700, 85 | in such vicious business. That there was N. W. 1046, 15 Am. Crim. Rep. 332. So a such traffic in women and girls; that they woman may conspire to procure an abor- were "literally slaves," "owned and held as

[ocr errors]

property and chattels,” and that their traf-, duced, whether willingly or unwillingly fickers made large profits, is set out at transported for purposes of prostitution, delength in the Reports of the House and Sen- bauchery, and immorality, is regarded as ate Committees (61st Congress, 2d Session), the victim of the trafficker, and she cannot recommending the passage of the bill. So therefore be punished for being enslaved, that an argument based on the use of the nor for consenting and agreeing to be transword “slave," "enslaved,” “traffic in women," ported by him for purposes of such business. "business in women,” “subject of transpor- To hold otherwise would make the law of tation,” and the like,-which might other- conspiracy a sword with which to punish wise appear to be strained,—is amply those whom the traffic act was intended to justified by the amazing facts which those protect. reports show as to the existence and extent The fact that prostitutes and others of the business and the profits made by the have used this statute as a means by which traffickers in women. The argument based to levy blackmail may furnish a reason why on the use of these words, and what they that should be made a Federal offense, so imply, is further justified by the fact that that she and they can be punished for blackthe statute itself declares ($ 8) that it shall mail or malicious prosecution. But those be known as the "white slave traffic act." evils are not to be remedied by extending In giving itself such a title the statute the law of conspiracy so as to treat the enspecifically indicates that, while of right, slaved subject of transportation as a guilty woman is not an object of merchandise or actor in her own transportation; and then traffic, yet for gain she has by some been punish her because she agreed with her wrongfully made such for purposes of slaver to be shipped in interstate commerce prostitution; and that trade Congress in- for purposes of prostitution. Such a contended to bar from interstate commerce. struction would make every willing victim

The act either applies to women who are indictable for conspiracy. Even that elas. willingly transported, or it does not. If tic offense cannot be extended to cover such it does not apply to those who willingly go a case. (47 H. R. 61st Cong. 2d Session, p. 10), There are no decisions dealing directly then there was no offense by the man who with the question as to whether a woma! transported her, or in the woman who assisting in her own illegal transportation voluntarily went,—and, in that event, there can be prosecuted for conspiracy. There was, of course, no conspiracy against the are, however, a number of authorities deallaws of the United States in her agreeing ing with somewhat analogous subjects. For to go. The indictment here, however, as example, in prosecutions for abortion, the sumes that the act applies not only to woman "does not stand legally in the situathose who are induced to go, but also to tion of an accomplice, for although she no those who aid the panderer in securing doubt participated in the moral offense im. their own transportation. On that assump- puted to the defendant, she could not have tion, every woman transported for the pur- been indicted for that offense. The law reposes of the business stands on the same gards her as the victim rather than the footing, and cannot by her consent change perpetrator.” Dunn v. People, 29 N. Y. 523, her legal status. And if she cannot be di- 86 Am. Dec. 319; Com. v. Wood, 11 Gray, rectly punished for being transported, she 86; State v. Hyer, 39 X. J. L. 598; State v. cannot be indirectly punished by calling | Murphy, 27 N. J. L. 114; Com. v. Follansher assistance in the transportation a con- bee, 155 Mass. 274, 29 N. E. 471; State v. spiracy to violate the laws of the United Owens, 22 Minn. 244; Watson v. State, 9 States. For if she is within the circle of Tex. App. 238; Keller v. State, 102 Ga. 510, the statute's protection, she cannot be taken 31 S. E. 92 (seduction). Contra apparentout of that circle by the law of conspiracy, ly in England and Colorado. Reg. v. Whitand thus be subjected to punishment be church, L. R. 24 Q. B. Div. 240, 59 L. J. cause she agreed to go.

Mag. Cas. N. S. 77, 62 L. T. N. S. 124, 38 The statute does not deal with the offense Week. Rep. 336, 16 Cox, C. C. 743, 54 J. P. of fornication and adultery, but treats the 472, 8 Am. Crim. Rep. 1; Solander v. Peowoman who is transported for use in the ple, Colo. 48. So, too, a person who business of prostitution as a victim,-often knowingly purchases liquor from one una willing victim, but nevertheless a victim. authorized to sell it is not guilty of a crimiIt treats her as enslaved. and seeks to nal offense and is not an accomplice. State guard her against herself as well as against v. Teahan, 50 Conn. 100; Com. v. Pillsbury, her slaver; against the wiles and threats, | 12 Gray, 127; People v. Smith, 28 Hun, 626, the compulsion and inducements, of those affirmed on opinion below, 92 N. Y. 665; who treat her as though she was merchan- State v. Baden, 37 Minn. 212, 34 N. W. 24. dise and a subject of interstate transpor. Where the purchaser of liquor sold in tation. The woman, whether coerced or in- I violation of law was prosecuted for inducing the seller to commit a crime, the court , ute, there is a strong implication that none said:

such was intended by the legislature." "Every sale implies a purchaser; there To this may be added the practical conmust be a purchaser as well as a seller, sideration, that any construction making and this must have been known and under the woman liable for participation in the stood by the legislature. Now, if it were transportation will not only tend to preintended that the purchaser should be subvent her from coming forward with her ject to any penalty, it is to be presumed evidence, but in many instances she will be that it would have been declared in the in position to claim her privilege and can statute, either by imposing a penalty on refuse to testify on the ground that she the buyer in terms, or by extending the might thereby subject herself to prosecupenal consequences of the prohibited act tion for conspiracy, in that she aided in to all persons aiding, counseling, or en- the violation of the law, even though it was couraging the principal offender. There be intended for the protection of her unfortu. ing no such provision in the statute, there nate class. is a strong implication that none such was The woman, whether treated as the will. intended by the legislature.” Com. v. Wil. ing or an unwilling victim of such transporlard, 22 Pick. 479.

tation for such business purpose, cannot be United States v. Dietrich, 126 Fed. 667, found guilty of the main offense, nor pun. though not directly in point, sheds light on ished for the incidental act of conspiring to the subject. There two persons were in- be enslaved and transported. Indeed, if dicted under Rev. Stat. § 5440, for conspir- she could be so punished for conspiring with ing to violate that law of the United States her slaver, the fundamental idea that makes (Rev. Stat. § 1781) which makes it a crimi- the act valid would be destroyed. She nal offense to agree to give or to receive a would cease to be an object of traffic; and bribe. The court held that agreeing to give instead of being the subject of illegal transor receive a bribe was the substantive of-portation would—not be transported by a fense, and not a conspiracy. For when an slaver as an object of interstate commerce, offense, as bigamy or adultery, requires for so as to be subject to regulative prohibi. its completion the concurrence of two per- tions under the commerce clause—but would sons, "the government cannot evade the be voluntarily traveling on her own account, limitations by indicting as for a conspir- and punishable by the laws of the state for acy."

prostitution practised after her arrival. And in Reg. v. Tyrrell [1894] 1 Q. B. 711, 63 L. J. Mag. Cas. N. S. 58, 10 Reports, 82, I am authorized to say that Mr. Justice 70 L. T. N. S. 41, 42 Week. Rep. 255, 17 Day concurs in this dissent. Cox, C. C. 716, where a girl under fifteen years of age was prosecuted for inciting

man to commit adultery with her, one of the judges considered that she could not WASHINGTON SUPREME COURT. be found guilty because she was under the

(Department No. 1.) age of consent, and the other said that the statute did not apply because "there is no STATE OF WASHINGTON EX REL. W. L.

GWINN et al., Appts., trace in the statute of any intention to treat the woman or girls as criminals."

R. E. BUCKLIN et al. Applying these cases, it appears that under the white slave traffic act there must

(- Wash, —, 145 Pac. 58.) be a woman who is transported and a person who compels or induces her to be trans Corporation right to inspect books

benefit of rival. ported, or who aids her in such transportation. “There is no trace in the statute of holds stock in a rival corporation, and de

That a stockholder of a corporation also any intention to treat the women or girls sires to inspect its books to enable him to as criminals” for being transported, nor for ascertain its prices and customers, so that agreeing that they will be transported, nor for aiding in the transportation. And if, spect books of the corporation, see notes to

Note. - As to right of stockholder to inas said in Com. v. Willard, 22 Pick, 479, Weihenmayer v. Bitner, 45 L.R.A. 446; Congress had intended that they should be Kuhback v. Irving Cut Glass Co. 20 L.R.A. subject to indictment for conspiracy, “it (N.S.) 185: State ex rel. Brumley v. Jeswould have been declared

by ex- sup & M. Paper Co. 30 L.R.A.(N.S.) 290, tending the penal consequences of the pro- and White v. Manter, 42 L.R.A. (N.S.) 332; hibited act to all persons aiding, counsel- meda Consol. Mines Co. 48 L.R.A.(N.S.)

see also subsequent cases, Davidson v. Aling, or encouraging the principal offender. 847, and State ex rel. Aultman v. Ice, post, There being no such provision in the stat-1288.

&

V.

[ocr errors]

ers.

the rival may underbid it and discredit its | of said company, together with the prices work to its customers, does not deprive him quoted to the same for the making of abof the benefit of a by-law entitling, each stracts, so that he may solicit such customstockholder to inspect the books and rec

ers for patronage for the rival company ords of the corporation at any time during operated by himself and to quote prices bebusiness hours.

low the cost of making such abstracts so (December 28, 1914.)

as to deprive the Kitsap Title Abstract

Company from the patronage of such cusA PPEAL by relators from a judgment of tomers; likewise, the said Gwinn would

the Superior County for Kitsap Coan make use of said information for the purty in favor of respondents in a mandamus | pose of discrediting the work of said Kitproceeding to compel them to permit re- sap Title Abstract Company, in so far as lators to examine the books and records of it would be possible for him so to do, and a corporation in which they are stockhold. particularly discredit the management and Reversed.

control of said business by the respondents The facts are stated in the opinion. Bucklin and Landolt." Mr. J. H. Allen for appellants.

We assume for argument's sake that this

allegation and the facts above stated are Parker, J., delivered the opinion of the true, in so far as such facts may be relevant court:

and controlling in this controversy. This The relators, W. L. Gwinn and R. L. constitutes as favorable a statement as can Thomas, stockholders of the Kitsap Title be made from the record, in respondents' Abstract Company, seek by mandamus pro- behalf. ceedings to compel the respondents R. E. Counsel for appellants contend that they Bucklin and E. A. Landolt, the president have the absolute right to examine the and secretary, respectively, of that company, books and records of the company without to permit the relators to examine the books such right being impaired in the least by and records of the company. Upon a hear. respondents' claim of right to inquire into ing had in the superior court, judgment relators' motive and purpose in making was rendered denying the relief prayed for such examination. and dismissing the action. From this rul- We are not here concerned with the mere ing and judgment, relators have appealed common-law right of stockholders to exto this court.

amine the books and records of the corporaThe Kitsap Title Abstract Company is a tion in which they hold stock, which right corporation organized and existing under is not absolute, but subject to restrictions the laws of this state, having its capital governed largely by the circumstances of stock divided into 1,000 shares. Relators each particular controversy. The nature own 497 shares, respondents 502 and extent of such common-law right was shares, and a third person owns 1 share reviewed by this court in State ex rel. of the stock of the company. Respondents | Weinberg v. Pacific Brewing & Malting Co. are president and secretary, respectively, 21 Wash. 451, 47 L.R.A. 208, 58 Pac. 584. of the company. They have the custody of We have no statute in this state bearing its books and records and the active man. upon this subject, but the Kitsap Title agement of its business. They are willing Abstract Company has a by-law reading as to accord to relators the privilege of ex- follows: “Each stockholder shall have the amining the books and records of the com- right to inspect the books and records of rany except such books and records as the company at any time during regular show the list of the customers of the com- business hours of said company." pany and the particular prices paid by This by-law, we think, has all the force them for abstracts. Respondents insist and effect of a statute containing such a that these particular books and records of provision. Cummings v. Webster, 43 Me. the company constitute a portion of the 192; Wyoming Coal Min. Co. v. State, 15 good will and trade of the company and are Wyo. 97, 123 Am. St. Rep. 1014, 87 Pac. such trade secrets that if made known to 337, 984; 10 Cyc. 351. relators, who are proprietors of a rival In Johnson v. Langdon, 135 Cal. 624, 87 abstract company in competition with the Am. St. Rep. 156, 67 Pac. 1050, the court Kitsap Title Abstract Company, such bad under consideration the claimed right knowledge by relators will result to the of the stockholder to examine the books and material injury of the business of the Kit- records of a corporation in which he held sap Title Abstract Company. In this con- stock, under a statute of California pronection respondents allege: "That the only viding that such records shall "be open to purpose of said W. L. Gwinn in seeking the the inspection of any director, member, examination of the books of said company stockholder, etc. The secretary of the corhas been to obtain the list of customers 'poration, in resisting the stockholders' claim

own

« PreviousContinue »