[dissenting). An information was filed in the Newaygo circuit charging defendant, as chief engineer, Fred. Coleman, assistant engineer, and James McLaughlin, ■road-master, of the Chicago & West Michigan Eailway Company, and Adam MeNabb, and other persons unknown, with .a conspiracy—
“ Willfully and maliciously to obstruct and impede the ■regular operation and conduct of the business of the Newaygo Manufacturing Company, a corporation organized under the laws of this State, to wit, the manufacture of lumber, pails, and tubs, flour and feed, by it then and theretofore carried • on in said village of Newaygo, by acts and means of intimi•dation, to wit, by then and there assembling together in the night-time, and entering upon the premises of said corporation in said village, and obstructing the usual flow of water in the canal thereon, owned by it, and by means of which its said business was and had been so carried on, and by force .and violence preventing the employés of said corporation from removing said obstructions, and thereby preventing the lowering of the water in said canal, and by causing a quantity •of hay and other foreign material to float down said canal, and clog and obstruct the wheels used in propelling the machinery and mills.and factory of said corporation in said ■village, which were then owned and operated by said corporation for the purpose aforesaid,” etc.
Eespondents were ordered to be tried separately, and under ■the charge Petheram was convicted by general finding, there ■being but one count in the information.
The prosecution was had under Act No. 11, Laws of 1877 (How. Stat. §§ 9274, 9275, 9276), entitled—
“ An act to prohibit any person from obstructing the regular operation and conduct of the business of railroad companies, or other corporations, firms, or individuals.”
*269The act consists of three sections, the first of which-punishes the willful and malicious obstruction, by any act, or by intimidation, except by due process of law, of the- “ regular operation and conduct of the business of any railroad company, or other corporation, firm, or individual in this State, or of the regular running of any locomotive-engine, freight or passenger train, of any such company, or the labor and business of any such corporation, firm, or individual,” by imprisonment not more than three months in the county jail, or not more than one year in the State prison.
The second section punishes any conspiracy to do any of those things by imprisonment not more than three months-in the county jail, or not more than two years in the State-prison. How the incomplete offense came to be made more serious than the completed one is not easy to determine.
The third section excepts from the operation of the statute workmen voluntarily leaving their employment.
Eespondent, after the people had completed their showing, declined to put in testimony, and claimed, in addition to various special exceptions, that no case was legally made out-against him. Objection is also made to the charge actually given.
Some objections were pointed out to the information below as more limited in its averments than the range of testimony admitted, and it is open to criticism for being less definite-than is desirable. The objection that the conspiracy is not-qualified by the necessary statutory words <c willfully and. maliciously” is made ineffectual by the fact that it is charged that they agreed to do the acts complained of “ willfully and maliciously,” and the idea is therefore sufficiently indicated. The objection to the absence of such facts will be referred to-hereafter.
The information is not very clear as to what use was meant-to be made of the specific acts spread out in the latter part. Strictly construed, these things are enumerated as the acts-*270-which, defendants conspired to do as the means of accomplishing the unlawful result complained of, as it would be proper, under our practice, to describe them. But on the ■trial the court treated this recital as a list of the overt acts ■done which defendant was notified would' be relied on to show the conspiracy, and which, while not always necessary, are regarded by the best authorities as proper and desirable to be •enumerated. It was especially important in the present case, because there was no proof of a conspiracy or of its bearing except as deducible from the acts complained of.
The first objection that was raised on this head was to the •testimony of Mr. Daniels, who proceeded to describe the obstruction as consisting of a coffer-dam and timbers. Had the •conspiracy been described generally as aimed at impeding the work by obstructing the flow of water in the canal, it might not have been important to allege how it was to be done, as .any number of methods might be resorted to, none of which •were directly foreseen or agreed upon. But., when the overt .acts set out are relied on to prove the conspiracy, there is no ■reason why things actually done should not be properly de•-scribed. Criminal pleading is sometimes more strictly construed than civil pleading, but it never can be less strictly. In a civil action it would be necessary t,o point out with some ■care the acts complained of, not only with a view .of informing defendant, and avoiding variance, but also of enabling the sufficiency of the facts to be tested as making out the ■case when shown.
In this case there was a further reason. Had the information shown the erection of a coffer-dam by persons described, not as private persons, but as railway officers, it would have made it easier to present one of the main questions i xplanatory of the controversy, which was not adequately brought forward on the trial and charge; namely, the purpose and cir-cumstances of the occupation of the canal.
The same difficulty arises in regard to the telephone being *271interfered with, and the interference with the night watchman to keep him from giving an alarm. Neither of these was alleged in the information as having been either done or contemplated. It is evident from the record that both were relied on as important acts in the working out of the conspiracy. The court finally told the jury there was no testimony to connect the telephone matter with the conspiracy, but that was somewhat late, after the fact itself had been ■shown, and the court in the charge so referred to it. The testimony on both these subjects, when introduced, was received as very significant upon the purpose of the parties, and the testimony of the watchman was not stricken out.
The principal question in the case arises on its general features, and concerning the meaning and operation of the statute. The facts, therefore, so far as bearing on this, become important.
It appears that immediately after midnight of Saturday, ■January 23, 1886, respondent and his men began to put up a bulk-head and coffer-dam to shut out the water from the raceway or canal in question, and endeavored to do so with- ■ out interruption, until they shoilld have got a place free to work in so as to put in a pier for the railroad bridge that passed over the place in question. Had they not been interrupted, there is nothing to show that the mills could not have been running again on Monday morning. But early'on Sunday morning the mill hands came down, and there was a continued conflict, interrupted, apparently, by some arrests, so that it took some further time to complete the work. When it was done, it appears from the testimony for the prosecution that the railroad, people went off quietly, and there was no further action. It is manifest that the primary, if not the only, purpose of respondents, was to put in a pier for the railroad bridge, and that the acts complained of had no other incentive. That each party did what it could to -carry out its purpose there is no serious dispute. But re*272spondent claims that the statute in question, as shown both by its title and its body, was not aimed at any but such conduct as was actuated by malice against the business alleged to have been interfered with, and had with a distinct purpose of interfering with its regular prosecution, and that acts done without such purpose and disposition do not fall within-this particular statute, whether otherwise criminal or not, or civilly actionable for damages.
There are many cases in criminal law where a party is said' to be responsible for the natural consequences of his acts, as-impliedly intending them. But this doctrine is not usually applicable where a particular purpose is required for a conviction; and while every intent is deduced, if at all, chiefly from circumstances, yet a specific intent cannot be deduced unless it is plainly deducible beyond any reasonable doubt, and to the exclusion of any different one. - This is an elementary doctrine in criminal law.
If the defendant and his associates were acting illegally and riotously, without a right to enter upon the premises in question, they may have been responsible at common law, if not under some other statutes. But that would not bring-them under this statute without something more.
It is very well known, and the statutes themselves show clearly, why such legislation was adopted. Its purpose was to-protect business interests of various, kinds from being destroyed or interrupted by persons who, without any good reason, and from malicious motives against it or its owners,, wished to hinder its prosecution. It is one of the various forms of malicious mischief which have been found necessary of prevention at various times by strong enactments, because they indicated such a disposition as was dangerous-to the security of life and property. In England these laws are numerous, and many of them have been adopted in this; country, or adapted to new occasions, and they have been construed in all cases with reference to the nature of the erimi*273nal purpose, and not on the principles of the common law concerning implied malice generally. There are not very many American decisions upon the subject, as until recently we have been less exposed to the sort of mischief which is aimed at the destruction of business. But there is no difference, so far as the authorities generally go, in the principles held applicable.
In this State only one case has been decided that is very analogous to this. That was the case of People v. Dunkel, 39 Mich. 255, where the respondent was charged with an offense under section 12 of article 4 of the general railroad law of 1873, the constitutionality of which was recently before us, and sustained, in the matter of the application of Seth Holcomb for a writ of habeas corpus. In Dunkel's Case he was charged with willfully endangering the lives of persons engaged in the work of railroads, and persons traveling on the train, by shooting a loaded pistol at them. The testimony showed clearly that he fired at a brakeman while in the discharge of his duty under circumstances which would have authorized a finding that the assault was felonious, and which would have made murder if he had died from its effects. It appeared that the brakeman, under orders from the conductor, put Dunkel off the train, and that, as he was getting back on the cars, Dunkel aimed at him, and shot a ball through his clothes. The jury convicted Dunkel under the statute, and therefore found the shooting willful. But this Court set aside the conviction on the ground that it was an assault with intent to kill or injure the brakeman individually, out of spite against him, and was not an act aimed against the safety of the train; and that the statute was intended only to reach cases where the purpose was to do mischief which imperiled the safety of passengers and employés by reason of their connection with the train itself, and was not meant to cover offenses against persons distinct from *274that, and reached by other legal provisions. In other words, it was for the protection of railroads and their business, and the malice must be aimed in that direction.
And on a similar principle it was held in Com. v. Killian, 109 Mass. 345, that a statute punishing obstructing a train, and endangering the safety of those on it, did not cover a case where a passenger pulled the signal rope, and stopped a train, and put all the passengers in peril, although it came, as DunIceVs Case did, under the language of the statute, and created the danger contemplated.
In Rex v. Williams, 1 Leach, 529, it was held that under a statute punishing an assault made willfully and maliciously, with intent to spoil, cut, hurt, or deface the garments of another, a person inflicting a serious wound, whereby the garments of the person assaulted were badly cut and injured, was not within the statute, as the primary intent required must have been the injury to the clothes, and not the implied intent deducible from the act which could only reach the person through the garments. The statute there had been suggested by*a systematic destruction of garments by persons employed in certain kinds of manufacturing, who assaulted passengers with that end.
In State v. Malloy, 34 N. J. Law, 410, where a statute punished severely the intentional destruction of marked boundary trees, it was held that the destruction of such a tree for a private use would not be punishable without the intent to destroy the boundary.
And so in Reg. v. Pembliton, L. R. 2 Cr. Cas. 119, where a person threw a heavy stone, intending to hit some one standing before a plate-glass window, and broke the glass, without having any malicious design against the glass, it was held he could not be convicted of an unlawful and malicious injury to the property. In the same case it is also held that the modern English statutes, which have changed the old law as to malicious intent, by declaring expressly that it need not be *275against the owner, do not dispense with personal malice, hut merely with the old rule requiring it shall be shown identically against the true owner. The books contain several cases under the older statutes where personal malice existed against persons actually or ostensibly in possession of property, and not owners, where the malice was held inapplicable. This was especially so in cases under the " Black Act,” of wanton and cruel injuries to animals. 2 Russ. Crimes, c. 43.
Mr. Bishop, on Statutory Crimes, § 430, shows that the malice in all these cases means a malicious purpose aimed at the person who is owner, and a malevolent desire to injure him. The cases cited fully bear him out.
In Rex v. Ross, Russ. & R. Cr. Cas. 10, respondent was indicted under a statute punishing unlawfully and maliciously breaking down the head or mound of any fish-pond, whereby the fish shall be lost or destroyed. The prisoner broke down the mound or head to enable him to get at and steal fish, and it was held that this was not within the statute, which applied only to cases of wanton and malicious mischief in cutting the bank, and not where it was done for some other purpose, however unlawful.'
This is also explained by Tomlins (Law Dick. “Mischief, Malicious”), where he says:
“ This is such as is done, not animo furandi, or with an intent of gaining by another’s loss, but either out of a spirit of wanton cruelty or wicked revenge.”
The Supreme court of Massachusetts adopted this language in Com. v. Walden, 3 Cush. 558, in a case where a man was indicted for shooting at a mare. The court below had instructed the jury that the malice referred to in the statute meant only common-law malice, defined as—
“ The willfully doing of any act prohibited by law, and for which the defendant had no lawful excuse, and that moral turpitude of mind was not necessary to be shown.”
The higher court reversed the conviction, and, after dis*276cussing the inapplicability of the rule laid down in the-charge as to malice, refer further to the stricter rule always applied in cases of malicious mischief, and quote from Tomlins as before stated, and cite Blackstone’s definition (4 Bl. Comm. 243) to the same effect.
The same doctrine is repeated in Com. v. Williams, 110 Mass. 401, in a base of malicious injury to a building, and it was held it is not enough for the act to be willful and intentional; it must have been done out of cruelty, hostility, or revenge.
And similar rulings have been had under the English statutes concerning rioters willfully and maliciously demolishing or beginning to demolish houses, where it has been uniformly held the intent must be complete demolition, and that an attempt against a house for the purpose of seizing or injuring a person was not sufficient. Rex v. Price, 5 Car. & P. 510; Rex v. Thomas, 4 Id. 238. And in Reg. v. Langford, Car. & M. 602, where persons riotously attacked and tore down an occupied house, which the occupant claimed, but which was also claimed by one of the party, it was held that, if they acted on a belief that their associate owned it, their offense did not constitute a willful and malicious demolishing such as is covered by the statute.
A strong case to the same effect is Reg. v. James, 8 Car. & P. 131, where there was a dispute about a mine, and a party of men under orders of a person not owning it, but whom they supposed to own it, shut up an air-hole, which was made a felony if done willfully and maliciously; but they were held not punishable. And in a subsequent action for malicious-prosecution against the real owner, who had procured the indictment, the court of queen’s bench, while they held that the prosecution could not be held, as a matter of law, malicious without the finding of a jury, held, nevertheless, as a matter of law, that there was an absence of reasonable cause-for the prosecution. James v. Phelps, 11 Adol. & E. 483.
*277Those cases are in point here for another purpose. The •offense charged here is a conspiracy, in which there must be a joint, willful, and malicious common purpose, and men working under orders could not be held for such an offense on any presumption of an ulterior design.
Similar doctrine to that found in the cases before cited on malicious injuries is recognized in Duncan v. State, 49 Miss. 331; Sattler v. People, 59 Ill. 68; Allison v. State, 42 Ind. 354; Rex v. Shepherd, 1 Leach, 539; Rex v. Pearce, Id. 527; Rex v. Austen, Russ. & R. Cr. Cas. 490; Rex v. Mogg, 4 Car. & P. 364. And the general doctrine, as to specific intent, is further illustrated in Reg. v. Sanderson, 1 Fost. & F. 37, and note; Rex v. Price, 5 Car. & P. 510; 1 Bish. Crim. Law, §§ 427-429; People v. Getchell, 6 Mich. 496; Shannon v. People, 5 Id. 71; Durant v. People, 13 Id. 351; Wilson v. People, 24 Id. 410; People v. Chappell, 27 Id. 486.
There can be no doubt of the law that, where persons are •charged with a conspiracy to bring about certain mischief, they cannot be convicted unless upon satisfactory proof that they actually conspired having in their minds the entire purpose forbidden by the statute. This case shows without dispute that what was done was in furtherance of a railroad bridge which was in course of construction, and that respondent was a servant of the railroad, and the other defendants acted under him. Unless they were acting in full, malicious, and willful purpose of wrong-doing, with the very intent punished by the statute, he could not be guilty of conspiracy unless they were, for one man cannot conspire. But, if they all .acted together with one mind, it must still have been with the clear and malicious intent against the business as a business, and with the purpose of preventing its exercise for .hostile and malevolent ends.
While the conspiracy was sought to be shown by the acts which ran through two or three days, it is laid and relied on .as existing before the entry, and as, animating it. There *278was no business going on from Saturday midnight to Monday morning; and, if there was an expectation or purpose of getting in the - pier during that interval, there could be no-' room, on any theory, for a statutory offense. But, beyond this, it as clearly appears that the parties went on for an important purpose connected with a corporate enterprise, which, if it had not actually the right to do what was done, could lawfully obtain it. If, as appears from the record, there was already a right of way for a bridge over this place, it is at least open to question whether it would not include such changes in the structure and its supports as should be found desirable or proper. The law does not sanction violations of right, but there is a great difference between a trespass to-obtain possession or some other advantage, and a trespass which is merely for purposes of vexation and mischief. It cannot be supposed that our Legislature intended to make every trespass felonious that happens to interfere with the prosecution of business. There are private and public remedies which have always been held sufficient for such cases. It would be straining unduly the provisions of a law designed to .prevent wanton interferences with business to make acts-done with an important and valuable primary purpose come-within those provisions.
The charge of the court ignored any possible excuse. It assumed that the conspiracy might be deduced purely from the acts which were shown, and that the hinderanee of the business was itself unlawful and criminal; and the jury were instructed that the railroad, although defendants were named as its officers, had nothing to do with the matter. There-was no instruction as to what would in law be regarded as willful and malicious, and it is only in referring to the form of the charge in the information that these necessary elements in the crime are mentioned at all. The jury, from the charge, would and probably did infer that, if respondent and his associates conspired to do just what they did accomplish,. *279tbey might convict under the statute, without reference to any further or different intent, and merely on proof of a trespass. •
There was no testimony whatever tending to show that any of the defendants had a desire to destroy or impair the business carried on by the Newaygo Manufacturing Company, or had any rival or opposing busyness interests; and there was nothing to raise any doubt of the main purpose of the undertaking. If a conviction could be had under such a state of facts, there are very few, if any, trespasses to business property that might not, with equal justice,, be held felonious within this statute.
I think the conviction should be set aside.