Where the crime is one at common law and the conclusion is both against the form of the statute and the peace of the state, the former will be rejected as surplusage. Davis v. State, 3 Har. and Johns. 154; Page v. Harwood, Allyen 41; King v. Dickinson, 1 Saund. 135a; 1 Bish., Crim. Proc., 349; Knowles v. State, 3 Day 103; Southwick v. State, 5 Conn. 325; Rex v. Journeymen Tailors, 8 Mod. 10; State v. Miller, 24 Conn. 519; Rawson v. State, 19 Conn. 292.

TYLER, J. I. It is contended that the information is insufficient. Neither count is under Section 4226, R. L. That section provides that, "A person who threatens violence or injury to another person with intent to prevent his employment in a mill, manufactory, shop, quarry," etc., shall be punished, etc. It evidently is not directed to cases where two or more persons act in concert, as in sections 4236 and 4237. Nor is either count under section 4227, which is directed against persons who, by threats, intimidation or force, drive men from their employment with intent to prevent the prosecution of work in such mill, etc. The second count avers that the respondents threatened the Wetmore & Morse Granite Co. that they would prevent its obtaining workmen if it did not discharge McClure, but does not aver that the threats were made with such an intent as is necessary to bring the case within section 4227.

Conspiracy is an offence at common law. Bishop says it is connected with every form of wrong-doing cognizable by the law; that it is the corrupt agreeing together of two or more persons to do by concerted action something unlawful, either as a means or an end. The unlawful act must either be such as would be indictable performed by one alone; or, not being such, be of a nature particularly adapted to injure the public, or some individual, by reason of the combination.

2 Crim. Proced., s. 166; 2 Crim. Law, s. 171. Powers, J., said in State v. Stewart et als., 59 Vt. 273:

"The reports, English and American, are full of illustrations of the doctrine that a combination of two or more persons to effect an illegal purpose, either by legal or illegal means, whether such purpose be illegal at common law or by statute; or to effect a legal purpose by illegal means, whether such means be illegal at common law or by statute, is a common law conspiracy. Such combinations are equally illegal whether they promote objects or adopt means that are per se indictable; or promote objects or adopt means that are per se oppressive, immoral or wrongfully prejudicial to the rights of others";

And cites, among other authorities, 2 Russ. on Crimes, "that all conspiracies whatever, wrongfully to prejudice a third person, are highly criminal at common law." See notes to this case in 59 Am. R. 710; The King v. Mawbury, 6 T. R. 636.

The counts of this information are in substantial compliance with the common law precedents. 2 Crim. Proced. chap. 18. They are in all material respects like those in the indictment in State v. Stewart et als., which were held sufficient as setting out a conspiracy at common law. Our statute, R. L., s. 689, adopts so much of the common law of England as is applicable to the local situation and circumstances, and is not repugnant to our constitution and laws.

The main question that arises upon this branch of the case is whether the prosecution could be by information or must be by indictment. The respondents' counsel argue that conspiracy can be charged only by indictment, as conviction. thereof was followed at common law by villainous judg

ment.

The ancient punishment of conspiracy was that called villainous judgment, which was that the offenders should lose the freedom or franchise of the law, so that they should be disqualified as jurors or witnesses, and have their lands

3 Chit. Crim. Law, 1144.

and goods seized by the crown. But the author says there has been no instance of the infliction of this punishment since the time of Edward III., and that it was punishable like any other misdemeanor, at the discretion of the court. Rex v. Spragg et al., 3 Burr. 997. In 2 Russ. on Crimes, 574, it is said that this kind of judgment had become obsolete, not having been pronounced for some ages. In 2 Bish. Crim Law, s. 240, conspiracy is declared to be a misdemeanor, even in those cases where its object is the commission of a felony.

R. L., s. 1618, provides that state's attorneys may prosecute by information all crimes except capital and those punishable by imprisonment in the state prison more than seven State v. Haley, 52 Vt. 476.

years.

The first count charges a conspiracy to prevent McClure's obtaining employment; the second, the actual accomplishment of the purpose; both charge a conspiracy to do acts unlawful at common law by means unlawful under the statute. State v. Stewart et als.

In section 940, Bish. Crim. Law, it is said that the ordinary and appropriate common law punishment for a misdemeanor is fine and imprisonment, or either, in the discretion of the court; that it is inflicted in all cases in which the law has not provided some other specific penalty.

Section 4365. R. L., provides that where an offence is declared by law to be punishable by imprisonment, and it is not specified that such imprisonment shall be in the state prison, it shall be construed to mean that it shall be in the house of correction. The words, "declared by law," do not necessarily or reasonably mean statute law only, but include the common law whenever it defines an offence and makes it punishable by imprisonment. In this view, the claim that prosecution can only be by indictment is not maintained.

II.

It is a general rule that the facts and circumstances

which constitute the crime must be stated with such certainty and precision that the accused may judge whether they constitute an indictable offence or not, in order that he may demur or plead to the indictment accordingly; that he may determine the kind of offence they constitute and prepare his defence, and that the court may know what judgment to pronounce upon conviction. As Lord Kenyon said in Rex v. Holland, 5 T. R. 607, that the party accused may be apprised of the charge against which he is to defend himself; that the court may know what judgment shall be pronounced according to law, and that posterity may know what law is to be derived from the record.

It is elementary that an indictment, information or complaint must not charge the accused disjunctively, so as to leave it uncertain what is relied on as the accusation against him. Thus, an indictment which alleged that the defendant made a forcible entry into two closes of meadow or pasture, was held bad. Speart's case, 2 Rol. Abr. 81; so an information which alleged that the defendant sold beer or ale without an excise license, The King v. North, 6 Dowl. & Ryl. 143; and where one was charged with committing a certain nuisance or causing it to be committed, Rex v. Stoughton, 2 Stra. 900. In Rex v. Stocker, 1 Salk. 371, an indictment for forging or causing to be forged, etc., was held ill. But Lord Mansfield said in Rex v. Middlehurst, I Burr. 400:

66

Upon indictments, it has been so determined, 'That an alternative charge is not good (as 'forged or caused to be forged'), though one only need be proved, if laid conjunctively (as forged and caused to be forged'). But Ido not see the reason of it; the substance is exactly the same; the defendant must come prepared against both; and it makes no difference to him in any respect."

A forcible illustration of a disjunctive charge is Ex parte Pain, 5 B. & C. 251, s. c. II Eng. C. L. 450. The indictment was under a statute which prohibited three kinds.

of casks from being found attached to certain vessels in the Irish or British channels in certain circumstances; first, those of the kind used for smuggling spirits; second, those intended to be so used; third, those fit or adapted for that purpose. The allegation was that said vessel had attached. twenty casks, * * "of the sort and description used or intended to be used for the smuggling of spirits"; held, that it was not alleged that the casks answered any one of the three descriptions, but one or another of them, and that the allegation being in the alternative was defective.

Rex v. Morley, 1 Y. & J. 221, was under a statute which enacted that no foreign silks or velvets should be imported or brought into Great Britain, upon penalty, etc. The averment in the count upon which the trial was had was "that the defendant imported or caused to be imported," etc. This was held bad for uncertainty. Several similar cases where the indictments were held ill are referred to in the opinion; as Wingfeld v. Jaffery, 1 Lord Raym. 284, "for selling live cattle or causing them to be sold"; Attorney General v. Farr, 4 Price 122, where the defendant was charged "with having been assisting or otherwise concerned in unshipping smuggled goods"; King v. Stocker, 5 Mod. 137, where the charge was "for making and fabricating, or causing to be made and fabricated, a bill of lading." It was said by the court in that case that, "It is true, in a strict sense, that he who causeth a forgery to be done is a forger himself, but then it ought to be so laid in the indictment"; that one was the proper act of the party, the other not, and the circumstances might require a distinct consideration as to the fine. In Davy v. Baker, 4 Burr. 2471, the declaration was that the defendant received a gift or reward, and was held bad, it not stating of what the gift or reward consisted.

In all these cases there is uncertainty in respect to the act with which the respondents are charged. Generally the charge is in the alternative, as that the respondent did one