§ 167. False auditing and paying claims.-A transfer in whole or part of any deposit with any bank or other depositary, or of any credit, claim or demand upon such depositary, whereby the right, title or possession of the owner or holder of such deposit, or of any custodian thereof, is impaired or affected, is a conversion thereof under the last section. CHAPTER VIII. CONSPIRACY. SECTION 168. Conspiracy defined. 169. Conspiracies against peace, etc. 171a. Coercion by employers. 171b. Depriving members of national guard of employment. § 168. Conspiracy defined. If two or more persons conspire, either 1. To commit a crime; or 2. Falsely and maliciously to indict another for a crime, or to procure another to be complained of or arrested for a crime; or 3. Falsely to institute or maintain an action or special proceeding; or 4. To cheat and defraud another out of property, by any means which are in themselves criminal, or which, if executed, would amount to a cheat, or to obtain money or any other property by false pretenses; or 5. To prevent another from exercising a lawful trade or calling, or doing any other lawful act, by force, threats, intimidation, or by interfering or threatening to interfere with tools, implements, or property belonging to or used by another, or with the use or employment thereof; or 6. To commit any act injurious to the public health, to public morals, or to trade or commerce, or for the perversion or obstruction of justice, or of the due administration of the laws; Each of them is guilty of a misdemeanor. See 2 Bish. Crim. Law (7th ed.), § 769, 240; 4 Am. and Eng. Encyc. of Law, 583; 6 N. Y. Cr. Rep. 361; 13 Eng. Rep. 440. The law of conspiracy was fully considered in Lambert v. People, 9 Cow. 578. See, also, People, ex rel. Lawrence, v. Brady, 56 N. Y. 189, 190. A conspiracy consists in the unlawful combination or agreement of two or more persons to do an act unlawful in itself, or to do a lawful act by unlawful means." Buffalo Lubricating Oil Co. v. Everest, 30 Hun, 588. See, also, People v. Trequeer, 1 Wheel. Cr. Cas. 142; Com. v. Hunt, 4 Metc. 111; Duprey's Case, 4 City Hall Rec. 121; Roget's Case, 2 id. 61; Emmanuel's Case, 6 id. 33; Mussel Slough Case, 5 Fed. Rep. 680; Spies v. People, 122 Ill. 1; 3 Am. St. Rep. 320; State v. Barnum, 15 N. H. 396. Whenever a new party concurs in the plans originally formed, and comes in to aid in their execution, he becomes a fellow conspirator. People v. Mather, 4 Wend. 229. To make an agreement between two or more parties to do an act, innocent in itself, a criminal conspiracy it is not enough that the act is prohibited by statute, but the agreement must have been entered into with a criminal intent. People v. Powell, 63 N. Y. 88. Any combination between two or more persons is a conspiracy when a crime is intended, whether successfully or not, and confederation may be inferred from all the circumstances. Storm's Case, 1 City Hall Rec. 169; Adams v. People, 9 Hun, 89. A conspiracy may be proved by circumstantial evidence; and parties performing disconnected overt acts, all contributing to the same result and the consummation of the same offense, may, by the circumstances and their general connection or otherwise, be satisfactorily shown to be conspirators and confederates in the commission of the offense. Kelley v. People, 55 N. Y. 565; 14 Am. Rep. 342. The unlawful intent is to be inferred from all the circumstances of the case. People v. Powell, 63 N. Y. 88. Combinations to unlawfully advance the price of articles of food are conspiracies. Leonard v. Poole (lard), 114 N. Y. 377; People v. North River Sugar Refining Co. (sugar), 54 Hun, 354; affirmed, 121 N.Y. 582; 8 Ry. and Corp. L. J. 22; so far as it was held that it was unlawful for corporations formed under the Manufacturing Act of 1848 (Laws 1848, chap. 40) to become a party to such a contract as that creating the Sugar Refining Company; but the views expressed in dicta in those decisions upon the collateral questions of monopoly, competition and restraint of trade are neither approved nor disapproved. To obtain goods by fraud and false representations. Lewis' Case, 5 City Hall Rec. 129; Hitchcock's Case, 6 id. 43. Commencing suits against a party for the purpose of extorting money. Leggett v. Postley, 2 Paige, 599. Of sailors' boarding-house keepers not to ship any seamen at the office of certain notaries is a conspiracy. Emmanuel's Case, 6 C. H. Rec. 33; People v. Melvin, 2 Wh. Cr. C. 262; People v. Fisher, 14 Wend. 9; Van Mater v. Babcock, 23 Barb. 633. A defendant may be convicted of a conspiracy with a deceased person. People v. Olcott, 2 Johns. Cas. 301. A clerk may be convicted of a conspiracy with his employer. Robbins' Case, 4 City Hall Rec. 1. In California it is held that a prosecution for conspiracy cannot be main. tained against husband and wife. People v. Miller, 22 Pac. Rep. 934. In People v. Everest, 51 Hun, 25, the court say: "It does not constitute a conspiracy under our statutes for persons to combine together to commit a trespass upon or to destroy another's property." A by-law or pledge adopted by an association of workmen, and subscribed by the members, providing that any member found guilty, on investigation by a committee, of working for less than the prices fixed by the association, shall forfeit to it twenty-five per cent of the amount of the price fixed for such work, which penalty may be collected in the name of the corporation by due process of law, is not in violation of subdiv. 6 of the above section. Master Stevedores' Ass'n v. Welsh, 2 Daly, 1. A combination of journeymen who attempt by threats and fines to coerce others to join in a "strike" is a conspiracy. People v. Melvin, Yates' S. C. 111; 2 Wheeler Cr. Cas. 269; 6 C. H. Rec. 35; People v. Fisher, 14 Wend. 9; People, ex rel. Gill, v. Smith, 5 N. Y. Cr. Rep. 509. Where there is no relation, direct or indirect, between the rate of wages and a strike, the combination which brings the latter about for unlawful purposes is a criminal conspiracy. People v. Smith, 5 N. Y. Cr. Rep. 509. A determination by workmen that an objectionable person, a “scab" so called, shall be driven away and prevented from working within a district large or small, is a conspiracy pronounced by law to be criminal and punishable by imprisonment. People, ex rel. Hill, v. Walsh, 15 N. Y. State Rep. 17; 6 N. Y. Cr. Rep. 292. The unlawful purpose of a strike may be evidenced by force, threats or intimidation to prevent another from exercising an unlawful trade. People v. Smith, 5 N. Y. Cr. Rep. 509; Reg. v. Bauld, 15 Eng. Rep. 316. "Boycotting" is an offense under this section. People v. Kostka, 4 N. Y. Cr. Rep. 429; People v. Wilzig, id. 403; People v. Lenhardt, id. 317; Old Dominion Co. v. McKenna, 18 Abb. N. C. 262; 1 Ry. and Corp. L. J. 218. In the case last cited, Brown, J., said: "Associations have no more right to inflict injury than individuals have. All combinations and associations designed to coerce workmen to become members or to interfere with, obstruct, vex or annoy them in working or in obtaining work because they are not members, or in order to induce them to become members; or designed to prevent employers from making a just discrimination between the wages paid to the skillful and to the unskillful; to the diligent and to the lazy; to the efficient and to the inefficient; and all associations designed to interfere with the perfect freedom of employers in the proper management and control of their lawful business, or to dictate in any particular the terms upon which their business shall be conducted, by means of threats of injury or loss, by interference with their property or traffic, or with their lawful employment of other persons, or designed to abridge any of these rights, are pro tanto illegal combinations or associations; and all acts done in furtherance of such intentions by such means and accompanied by damage are actionable. Greenhood Pub. Policy, 648, 653; People v. Fisher, 14 Wend. 1; 28 Am. Dec. 509, note; Tarston v. McGalliter, Peake, 105; Rafael v. Verein, 2 W. Bl. 1055; Lumby v. Gage, 2 El. & Bl. 216; Bowen v. Hall, 2 Q. B. Div. 333, 337; Gregory v. Duke, etc., ô M. & G. 205; Gunther v. Astor, 4 J. B. Moore, 12; Reg. v. Rollins, 17 Ad. & El. (N. S.) 671; Mogul Co. v. MacGregor, 15 Q. B. Div. 486; Walter v. Cronin, 107 Mass. 555; Carew v. Rutherford, 106 id. 1; State v. Donaldson, 32 N. J. Law, 151; Master Stevedores' Ass'n v. Walsh, 2 Daly, 1, 13; Johnson v. Meinhardt, 61 How. Pr. 168; Slaughter-House Cases, 16 Wall. 36, 116." See Thomas v. Mut. Protective Union, 121 N. Y. 50. A full discussion of the question of strikes and boycotts will be found in the recent cases of Crump v. Com., 84 Vr. 927; 10 Am. St. Rep. 895; 6 N. Y. Cr. Rep. 342; 38 Alb. L. J. 4, State v. Glidden, 55 ̊Conn. 46; 3 Am. St. Rep. 23; 6 N. Y. Cr. Rep. 321; State v. Stewart, 59 Vt. 273; 59 Am. Rep. 710; 9 Crim. Law Mag. 693. See, also, id. 1; 10 N. Y. State Bar Ass'n Rep. 148; 35 Alb. L. J. 224. As to the doctrine of merger of offenses in conspiracy cases, see State v. Set. ter, 54 Conn. 461; 41 Alb. L. J. 129; 14 Am. St. 121; People v. Mather, 4 Wend. 265; People v. Richards, 1 Mich. 216; 51 Am. Dec. 75, 79, note. A citizen of this state, who has entered into a conspiracy to violate its laws for his own personal gain, cannot escape punishment because the act he planned was accomplished during his absence from the state. People v. Lyon, 1 N. Y. Cr. Rep. 400; 99 N. Y. 219. See, also, Noyes v. State, 1 Crim. Law Mag. 215; following People v. Mather, 4 Wend. 227. Indictment must either show that the object aimed at or the means used are criminal. Lambert v. People, 9 Cow. 578; People v. Eckford, 7 id. 535; People v. Mather, 4 Wend. 229; Elkin v. People, 28 N. Y. 177; 24 How. 272; People v. Everest, 51 Hun, 19. An indictment for conspiring to cheat and defraud, held sufficient without averring the means to be used or that the conspiracy was unlawful. Schultz's Case, 5 City Hall Rec. 112. See, also, March v. People, 7 Barb. 391. An indictment for conspiracy to cheat by false pretenses must state the place at which the alleged pretenses were made. People v. Barrett, 1 Johns. 66. Where the conspiracy is to induce a witness to suppress her evidence, the indictment must aver that the conspirators did persuade and induce her to withdraw herself from the county, etc. People v. Chase, 16 Barb. 495. Indictment may charge A. with conspiring with others unknown. People v. Mather, 4 Wend. 229. And it is enough to prove a conspiracy with any person other than A. Duprey's Case, 4 City Hall Rec. 121. On an indictment against two for a conspiracy to cheat, the judgment should be against each defendant severally and not against them jointly. March v. People, 7 Barb. 391. Where parties are acting in concert in a conspiracy, their acts and admissions are evidence against any one of their number. People v. Sharp, 45 Hun, 460; 5 N. Y. Cr. Rep. 389, 469; People v. Bassford, 3 id. 219; People v. Murphy, id. 339; Loos v. Wilkinson, 10 State Rep. 297. See, also, 4 Am. and Eng. Encyc. of Law, 631. Where the evidence is insufficient to prove a conspiracy, evidence of the acts or declaration of the alleged conspirator performed or uttered when defendant was not present, or if present was not participating therein or in some manner assenting thereto, is inadmissible against defendant. People v. Paolik, 7 N. Y. Cr. Rep. 30. Declarations of alleged co-conspirators made subsequent to the abandonment or accomplishment of a conspiracy cannot be given in evidence against a coconspirator. People v. Squire, 6 N. Y. Cr. Rep. 475. Whether declarations of alleged co-conspirators can be given in evidence before proof has been given of the conspiracy is a question which rests very largely in the discretion of the trial judge. People v. Squire, 6 N. Y. Cr. Rep. 475. But see Ormsby v. People, 53 N. Y. 472. § 169. Conspiracies against peace, etc. If two or more persons, being out of this state, conspire to commit any act against the peace of this state, the commission or attempted commission of which, within this state, would be treason against the state, they are punishable by imprisonment in a state prison not exceeding ten years. § 170. No other conspiracies punishable. No conspiracy is punishable criminally unless it is one of those enumerated in the last two sections, and the orderly and peaceable assembling or co-operation of persons employed in any calling, trade or handicraft for the purpose of obtaining an advance in the rate of wages or compensation, or of maintaining such rate, is not a conspiracy. See § 675, post. People v. Barondess, 61 Hun, 577; Rogers v. Evarts, 17 N. Y. Supp. 264. Workmen have a right to seek by all peaceable means an increase of wages, and all meetings and combinations having that object in view, which are not distinguished by violence or threats, are lawful. People, ex rel. Gill, v. Walsh, 6 N. Y. Cr. Rep. 292; 15 State Rep. 17; People, ex rel. Gill, v. Smith, 5 N. Y. Cr. Rep. 509. It is lawful for any number of journeymen, or of master workmen, to agree on the one part that they will not work below certain rates, or, on the other hand, that they will not pay above certain prices. Master Stevedores' Ass'n v. Welsh, 2 Daly, 1. This section does not authorize a combination of individuals to compel, by means condemned in section 168, workingmen to join the co-operating forces, or to punish those who are supposed to be inimical thereto. People, ex rel. Gill, v. Smith, 5 N. Y. Cr. Rep. 509. Trades-unions not unlawful unless they interfere with those not members. Master Stevedores' Ass'n v. Welsh, 2 Daly, 1. Any orderly body of men have the legal right to meet and discuss any question concerning their social or pecuniary welfare, and take any action in respect thereto so long as it does not involve or tend to create a breach of the peace. One workman has the right to accost another in the street or elsewhere and invite him to follow his example or join the union. But if these rights are enforced in an illegal manner the police have the right to interfere, and may, in all circumstances, prevent any threatened breach of the peace. Zeigler v. Nolan, 2 City Ct. Rep. 54. § 171. Overt act, when necessary. No agreement except to commit a felony upon the person of another, or to commit |