The opinion
CONCURRING OPINION.
WOODSON, J.
I concur in the result reached in the .majority opinion delivered herein, but not for the reasons therein stated.
Strictly speaking, in passing upon a demurrer to an information or indictment charging a conspiracy, the court should look solely to the information; or indictment, as the case might be, and the demurrer thereto; but where, as here, the entire argument, and I might add, where counsel for all the parties practically admit in open court, that the real crime committed and intended to be charged in the information was not *56 a conspiracy to do an unlawful thing, as charged by the letter of the information, but the intention was to charge an unlawful conspiracy to do a lawful thing, then it would be idle to treat the information as though it charged a conspiracy to do an unlawful thing, whereas the fact is, as above stated, the intention was to charge an unlawful conspiracy to do a lawful thing. Consequently I am going to treat the information in the sense that it charges an unlawful conspiracy to do a lawful thing, to-wit: That the respondents entered into and formed an unlawful conspiracy to fix certain rates for the transportation of passengers in this State, not to exceed three cents per mile, which under the statutes of this State, as held by the Federal courts, are lawful rates.
In the light of these preliminary observations, I concur only, as previously stated, in the result reached by the majority opinion, but not for the reason therein assigned, namely, that an information charging a conspiracy to do an unlawful thing, in order to be good, must set forth the terms or means by which the unlawful end is to be accomplished.
In my opinion good pleading only requires that such a conspiracy should be charged in general terms. The authorities seem to be uniform in holding that when a conspiracy is formed and entered into by two or more parties, for the purpose of doing an unlawful thing, then it is unnecessary to set out in the information or indictment the terms of the conspiracy, or the means employed by which the end is to be accomplished. But if the end in view is a lawful purpose, and the conspiracy only becomes criminal by reason of the unlawful means whereby it is to be accomplished, then it becomes necessary to show such criminality by setting out such unlawful means-. [State ex rel. v. Standard Oil Co., 218 Mo. l. c. 367, and cases cited.]
*57 In the case at bar, the conspiracy entered into by and between the respondents was to do a lawful thing, by unlawful means, namely, to fix passenger rates not in excess of those authorized to be charged by the laws of the State.
If each and all of the respondents were authorized by law to charge as high or higher rates than those fixed by the conspiracy, then clearly those rates are legal; but the crime involved in the conspiracy consists, not of the rates fixed, but in the unlawful agreement by which those lawful rates were fixed and agreed to.
That argument destroyed competition between the common carriers of the State, and prevents one company from charging a lesser rate for the saíne service than another might be willing to charge, were it not for the existence of such agreement.
Clearly the traveling public is entitled to that competition, and the companies have no right to deprive it of that right by any kind of an agreement among themselves. It is true, that each and all of them could lawfully, for itself, fix rates at three cents a mile, and no one would have any right to complain, but they cannot lawfully do so collectively.
Under those facts, according to the rules of pleadings previously stated, the terms of the unlawful agreement fixing lawful rates by means of the unlawful conspiracy should have been charged in the information.
My learned associate who wrote the majority opinion in this case misconceives the facts of the Standard Oil case, supra, and for that reason errs in his conclusion as to the ruling there made. There the respondents were charged in the information with entering into a conspiracy to do a number of unlawful things and not, as here, to do a lawful thing by unlawful means.
According to the rule before announced, and according to the ruling in the Standard Oil case, it was *58 not necessary in that case to set out the terms or character of the conspiracy, but in the case at bar the nature and terms of the conspiracy should be stated.