Oliver Wendell Holmes, Jr.

“ As to the suggestion that the matters alleged to have been contemplated would not have constituted an offense if they had been done, it is enough to say that some of them conceivably might have been adequate to accomplish the result, and that the intent alleged would convert what on their face might be no more than ordinary acts of competition or the small dishonesties of trade into a conspiracy of wider scope, as has been explained more than once. ”

“ And thereupon it is said that the crime thus defined by the statute contains in its definition an element of degree as to which estimates may differ, with the result that a man might find himself in prison because his honest judgment did not anticipate that of a jury of less competent men. The kindred proposition that 'the criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. ”

“ If a man should kill another by driving an automobile furiously into a crowd, he might be convicted of murder, however little he expected the result. See Reg. v. Desmond, and other illustrations in Stephen's Dig. ”

“ But taken by itself, as the jury might have taken it under the instructions, it showed only cheating, and could not warrant a finding of the conspiracy with which the defendants were charged. It is unnecessary to consider whether there was any evidence sufficient to warrant a conviction upon some of the other means alleged, for instance, the first, as the absence of such evidence only would add another reason for holding the instructions wrong upon a vital point. ”

“ Rep. 253, that no intent could convert the proposed conduct into such a crime.
Finally, we cannot pronounce the counts before us bad for uncertainty. On demand of the defendants a bill of particulars was furnished, and there is no reason to fear that injustice was done in that respect. There was no need to allege or prove that the conspirators themselves were all traders. ”