# Pettibone v. United States/Dissent Brewer

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* Dissenting Opinion Brewer
United States Supreme Court
148 U.S. 197
Pettibone v. United States
Mr. Justice BREWER, dissenting.
I dissent from the opinion and judgment in this case. The burden of the decision as, as I understand it, that the indictment is fatally defective because it does not allege that the defendants knew of the injunction, and, also, that the conspiracy was to obstruct the administration of justice in the federal court. In other words, the defendants cannot be convicted of obstructing the administration of justice in the federal court because they did not know that justice was being there administered, and that, as they did not combine with the intent of obstructing the administration of justice, no such intent can, in law, be imputed to them. I insist that the true rule is that, where parties combine in an unlawful undertaking,-and by that I mean an undertaking unlawful in and of itself, and not one simply forbidden by statute; one which is malum in se, as distinguished from malum prohibitum,-they are amenable to the bar of criminal justice for every violation of law they in fact commit, whether such violation is intended or not.
Take the familiar illustration: Parties combine to break into a house and commit burglary. While engaged in the commission of that offense, resistance being made, one of the party kills the owner of the house. Can there be a doubt that they are all guilty of murder, although murder was not the purpose of the combination, and was not in the thought of any but the single wrongdoer? In other words, they who did not intend murder, who did not know that murder was in fact being committed, are ruled to be chargeable with the intent to commit murder, and to be guilty of that offense, because they were engaged at the time in an unlawful undertaking, and the murder was committed in carrying that undertaking into execution. In 1 Hale, P. C. 441, it is said, quoting from Dalton, (page 241:) 'If divers persons come in one company to do any unlawful thing, as to kill, rob, or beat a man, or to commit a riot, or to do any other trespass, and one of them, in doing thereof, kill a man this shall be adjudged murder in them all that are present of that party abetting him, and consenting to the act, or ready to aid him, although they did but look on.' Also, in 1 East, P. C. 257: 'Where divers persons resolve generally to resist all opposers in the commission of any breach of the peace, and to execute it with viollence, or in such a manner as naturally tends to raise tumults and affrays, as by committing a violent disseisin with great numbers, or going to bear a man or rob a park, or standing in opposition to the sheriff's posse, * * * they must, at their peril, abide the event of their actions.' In Weston v. Com. 111 Pa. St. 251, 2 Atl. Rep. 191, it was held that if several persons are, with firearms, holding a forcible possession of lands claimed by others, all are guilty of a murder committed by any one of them therein. In Williams v. State, 81 Ala. 1, 1 South. Rep. 179, it appeared that several persons conspired to invade a man's household, and went to it with deadly arms to attack and beat him, and in carrying out this purpose one of the party got into a difficulty with the owner, and killed him, and the others were held guilty of murder, although they did not mean it. So, in State v. McCahill, 72 Iowa, 111, 30 N. W. Rep, 553, and 33 N. W. Rep 599,-a case in some respects like this,-it appeared that certain persons combined to drive employes from premises, and in carrying out this conspiracy committed a murder, and it was held that the rest, who did not intend it, were guilty. In that case, on page 117, 72 Iowa, and page 555, 30 N. W. Rep., the court thus stated the law: 'But where there is a conspiracy to accomplish an unlawful purpose, [as the forcible driving out of the new miners was,] and the means are not specifically agreed upon or understood, each conspirator becomes responsible for the means used by any co-conspirator in the accomplishment of the purpose in which they are all at the time engaged.' See, also, Hamilton v. People, 113 Ill. 34; Stephens v. State, 42 Ohio St. 150; State v. Allen, 47 Conn. 121.
Applying these authorities to this case, if, while these defendants were thus forcibly driving the employes of the mining companies away from their work, one of them had shot and killed a resisting employe, would not all be guilty of murder, although only the single party had a thought of murder in his heart? Of course, I do not mean to claim that if a number are engaged in a single unlawful undertaking, and one of them steps aside and commits an entirely independent crime, all are responsible for that; but I do insist that if all are engaged in an unlawful undertaking, and while so engaged, and in carrying out that undertaking, one commits an additional offense, not within the actual thought and intent of his co-conspirators, all are guilty of that additional offense. And, in like manner, where parties conspire and combine to do an unlawful act, and in carrying that unlawful purpose into execution they do in fact violate a statute, of whose terms they may be ignorant, and therefore one which they did not intend to violate, they are, in law, guilty of its violation, and may be punished accordingly. The law, under those circumstances, imputes to the wrongdoer the intent to violate every law which he does in fact violate. So, as these parties are guilty of this most unlawful act, this gross breach of the peace, this act which in and of itself was a flagrant wrong against the rights of individuals, both employers and employes, they should be chargeable with the intent to commit every violation of law which they did in fact commit. And, when parties stop injunctive process, they impede the administration of justice.
But it is said that this breach of the peace was a disturbance of only the peace of the state of Idaho, and that this unlawful aggression was simply a violation of the statutes of that state, and involved, in and of itself, no infraction of federal law; that, before a conviction can be sustained, it must be alleged and proved that there was an intent to violate the federal law; and that an intent of wrong against one sovereignty cannot be imputed to one who commits a wrong against another sovereignty. The converse of that has already been settled by this court in the case of In re Coy, 127 U.S. 731, 8 Sup. Ct. Rep. 1263. That was an indictment for a conspiracy, and the conspiracy charged was to induce, aid, counsel, procure, and advise certain election officers of the state of Indiana to unlawfully neglect and omit to perform the duties of the election laws of that state. The indictment, it is true, described the election as one at which a congressman was to be elected, but did not charge any intent or conspiracy to do anything affecting the election of such congressman; and the point-and the main point-presented was that the indictment contained no averment of an intent and purpose of the defendants to affect in any manner the election of a member of congress, or to influence the returns relating to that office, but this court held that the objection was not well taken. Mr. Justice Field alone dissented from the opinion in that case, holding that, as it is insisted here, there should be a specific charge of a conspiracy to do something affecting the election of the federal officer. I quote this from his opinion: 'The indictment in this case charges a conspiracy to induce certain election officers appointed under the laws of Indiana to commit a crime against the United States, the crime being the alleged omission by them to perform certain duties imposed by the laws of that state respecting elections. But it contains no allegation that the alleged conspiracy was to affect the election of a member of congress, which, as said above, appears to me to be essential to bring the offense within the jurisdiction of the court. If the conspiracy was to affect the election of a state officer, no offense was committed, cognizable in the district court of the United States. If it had any other object than to affect the election of a member of congress, it was a matter exclusively for the cognizance of the state courts.' It seems to me that in this opinion the court indorses the views expressed by Mr. Justice Field in that dissent, and then repudiated by a majority of the court.
I am authorized to say that Mr. Justice BROWN agrees with me in this dissent.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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