(concurring in part, dissenting in part).
Perhaps the difference between my views and those of Judge McLAUGHLIN and Judge STALEY as well as those expressed in the majority opinion respecting the defendant Kemble can be best illustrated by propounding a series of questions and giving what I think would be the answers which the several opinions of the other judges of this court would require. This will also serve to highlight what I conceive to be the errors in the charge of the court below.
First, is this or is this not a labor dispute? Judge McLAUGHLIN would answer “Yes”; Judge STALEY would- say “No”; the majority opinion seems to leave this question unanswered and in effect treats it as immaterial save for the fact that the majority ruling states: “It is enough for this case * * * that payment of money for imposed, unwanted and superfluous services such as the evidence shows Kemble attempted to enforce here by violent obstruction of commerce is within the language and intendment of the statute.”
Second, was Kemble’s sole purpose to obtain employment for a union helper ? Judge McLAUGHLIN would answer “Yes”. Judge STALEY would say in effect that this is a question for the jury; that if the answer be in the affirmative Kemble’s actions are not within the prohibition of the statute; otherwise, the jury properly would have found him guilty, had the charge been adequate. The majority would say that a “Yes” or “No” answer is irrelevant despite the proviso quoted in the immediately preceding paragraph of this opinion.
Third, was there evidence to sustain a conclusion by the jury that Kemble was attempting to gain money or property other than 'by securing a helper’s job for a member of his union?17 Judge McLAUGH-*901LIN’S answer would be “No”; Judge STALEY would say that this is a jury question. The majority opinion would, I think, hold this issue to be immaterial except in respect to the proviso quoted in the second paragraph, supra.
Fourth, is there evidence to sustain a conclusion that Kemble attempted to obtain money from the truck driver with his consent by the wrongful use of actual or threatened force? See Section 1(c) of the Act of July 3, 1946, 60 Stat. 420, the definition of “extortion”. The majority opinion would say that this was a question for the jury subject to the proviso referred to immediately above and that the jury had resolved it against Kemble. Judge STALEY would rule that this is a jury question, proper instructions being given to the jury, but that the court below should have charged as to the requisite “criminal intent” within the purview of Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, viz., a taking, fraudulently attempted or accomplished, as an element of an extortion. Compare our decision in United States v. Kemble, 3 Cir., 197 F.2d 316. Judge STALEY states that it is necessary to interpret the Anti-Racketeering Act as “ * * * imposing on the prosecution the burden of proving a felonious, corrupt intent — an intent similar to that customarily required in all larceny-type offenses.” Judge McLAUGHLIN would hold that Kemble’s act would not be covered by the statute so long as he was engaged, as Judge McLAUGHLIN concludes he was, in activity on behalf of his union.
As answers to the first three questions I state the following. It is unnecessary to determine whether this was or was not a labor dispute or whether Kemble’s sole purpose was to obtain employment as a union helper for himself or for some one else, or whether he was simply attempting to gain money or property. The statute embraces all of this without differentiation. As to the fourth and last question: Is there evidence to sustain a conclusion that Kemble attempted to obtain money from the truck driver with his consent by the wrongful use of actual or threatened force? My answer is in the affirmative.
The fourth and last question embraces the major issue presented by the instant appeal and since there is sufficient evidence to sustain the conclusion that Kemble attempted to obtain money from the truck driver with his consent by the wrongful use of actual or threatened force, thereby obstructing commerce, I would vote to affirm Kem-ble’s conviction had the charge been adequate.
The court below in its charge to the jury did not deal expressly with many of these questions though it seemed to be of the view that if Kemble attempted to gain money either for himself or for his union as payment for an unloading helper from the truck driver by wrongful use of actual or threatened force the jury was entitled to find Kemble guilty of the crime charged. The charge was correct as far as it went.18
From an examination of the legislative history of the 1946 Act, in force when the defendants’ offenses were committed on May 13, 1947, and of the dehates in the House of Representatives, in particular those set out in 91 Cong.Rec. 11,900-11,902, the conclusion is irresistible that Congress intended to obviate the decision of the Supreme Court of the United States in United States v. Local 807, 315 U.S. 521, 62 S.Ct. *902642, 86 L.Ed. 1004, based on the 1934 Act, and to recast the Anti-Racketeering Act to obliterate the exception embodied in Section 2(a), in the phrase “ * * * not including, however, the payment of wages by a bona-fide employer to a bona-fide employee * * * ”, and in Section 3(b), by the sentence, “The terms ‘property’, ‘money’, or ‘valuable considerations’ used herein shall not be deemed to include wages paid by a bona-fide employer to a bona-fide employee.” See 48 Stat. 980. In the 1946 Act Congress defined the term “extortion” as the obtaining of property from an individual with his consent induced by the “wrongful” use of actual or threatened force. The 1946 Act was intended by Congress to apply to every individual whether he was acting on behalf of a labor union or not if commerce was obstructed by his use of violence or threats of violence. I therefore cannot accept Judge McLAUGH-LIN’S interpretation of the statute, and the proviso quoted from the majority opinion in the second paragraph of this opinion seems to me to put a gloss or limitation on the statute which was not intended by Congress. But assuming that that majority opinion’s proviso is proper the court’s charge was devoid of reference to such a condition and therefore consistency would require the majority to hold the charge to have been inadequate.19
The word wrongful, used in Section 1 (c) of the Act, the definition of “extortion”, is not a term of strong art in the criminal law. Wrong is described as “An injury; a tort; a violation of right.” 2 Bouvier’s Law Dictionary, Rawle’s Third Revision, page 3500. The same authority goes on to say that a “wrong” “[I]n its broad sense, includes every injury to another independent of the motive causing the injury.' In its most usual sense wrong signifies an injury committed to the person or property of another, or to his relative rights unconnected with contract; and these wrongs are committed with or without force * * * A public wrong is an act which is injurious to the public generally, commonly known by the name of crime, misdemeanor or offense * * * Private wrongs * * * are injuries to individuals, unaffecting the public; these are redressed by actions for damages * * *” Webster’s International Dictionary, 2nd ed., defines the word “wrong” as follows: “Law. A violation of the legal rights of another; an invasion of right to the damage of the party who suffers it; esp., a tort. Legally, private wrongs are civil injuries, immediately affecting individuals; public wrongs are crimes and misdemeanors which affect the. community.” It would seem to be the case therefore that in employing the word wrongful in the amended Anti-Racketeering Act Congress made use of a very broad term. Cf. the use of the word “unlawful” employed in the definition of “Robbery” in Section 1(b).
But did Congress mean to include within the Act both private and public wrongs, simple torts as well as crimes? If an individual in seeking employment threatened force, thereby obstructing commerce, hut neither committed nor attempted robbery or extortion as those crimes are generally defined in the criminal law, including the law of New York, would his conduct fall within the proscription of the Act? Looking only to the face of the statute my answer would have to be “Yes”, but I cannot bring myself to believe that such was the Congressional intent. Congressman Hancock when he described the purpose of the bill which became the Act of 1946, stated as follows: “This bill is designed simply to prevent both union members and non-union members from making use of robbery and extortion under the guise of obtaining wages in the obstruction of interstate commerce.” Numerous congressmen made similar comments. Representative Hobbs, the father of the statute, made it very plain that the terms “robbery” and “extortion” as defined in the Act were intended to proscribe public wrongs, crimes, not private wrongs, mere torts, and that the law of New York *903furnished the basis of the proscription. Representative Hobbs said, “They [the terms robbery and extortion] have .been construed by the courts not once 'but a thousand times. The definitions in this bill are copied from the New York Code substantially.” See also the statement of Representative Robsion, and specifically the remarks of Representative Hancock, as follows, “The bill contains definitions of robbery and extortion which follow the definitions contained in the laws of the State of New York * * * ” See 91 Cong.Rec. 11,900-11,906.
The court below, attempting to simplify a complicated legal and factual situation, charged the jury in the terms of the statute. It made no attempt to define the meaning of the term “wrongful” as used in Section 1(c). There was no instruction that the acts which Kemble had committed had to be found by the jury to constitute the crime .of attempted extortion, a crime, as distinguished from a tort, a mere private wrong. The court did not instruct the jury as to the mens rea necessary to sustain the offense designated in the indictment. Indeed, the court made no mention whatsoever of the mens rea or the criminal intent which Kemble had to have had if he was to be found guilty. For these reasons I cannot vote to sustain Kemble’s conviction. I agree with Judge STALEY that Kem-ble’s sixth requested charge was sufficient to raise the issues here discussed. Though the request was not entirely apt or artistic nonetheless the necessary substance was presented. I conclude therefore with Judge STALEY that a new trial should be had as to Kemble.
I agree with the conclusion expressed by the majority, however, that there is insufficient evidence to bring the Local within the provisions of Section 6 of the Norris-LaGuardia Act, 47 Stat. 71, in the light of the decision of the Supreme Court in Brotherhood of Carpenters and Joiners of America v. United States, 330 U.S. 39S, 67 S.Ct. 775, 91 L.Ed. 973. Therefore, I concur in the view that the judgment as to No. 10,423 should be reversed and a judgment of acquittal entered as to the Local.
. It is unnecessary to here state the final clement, viz., the obstruction of commerce within the purview of the Act since there is no issue as to the existence of the necessary facts to sustain the conclusion that commerce was obstructed.
. An examination of the “Anti-Racketeering” Act, Act of July 3, 1946, in effect on May 13, 1947, 60 Stat. 420-421, when the offenses complained of were committed shows that it is a substitute for the original Act of June 18, 1934, 48 Stat. 979-980. The indictment charging Kem-ble and Local 676, returned February 15, 1950, is loosely drawn, and on its face seems to charge a conspiracy against Kemble and Local 676 but may be construed as charging Kemble and Local 676 with participation, individually, in a plan to obstruct interstate commerce by physical violence and threats of physical violence. Insofar as the record before us shows, no motion was filed to make the indictment more definite or certain or to draw it out. By the end of the trial of the case the court below and counsel for the parties were treating the indictment as charging participation in the acts prohibited by the statute rather than as an indictment for a conspiracy. I adopt their interpretation of the indictment.
. Though this point respecting the charge was not specifically asserted by Kemble, the first ground of the motion for judgment of acquittal or in the alternative for a new trial is broad enough to raise this issue. ,