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Colonial Cases

United States v. Crowell, 1914

[eavesdropping]

United States v. Crowell

United States Consular Court, Shanghai
7 September 1914
Source: The Straits Times, 21 September 1914

 

THE DETECTAPHONE CASE.

EAVESDROPPING AS CRIMINAL OFFENCE.

CHARGE AT SHANGHAI FAILS.

   Judgment was delivered in the United States Consular Court at Shanghai, on September 7, in the case of Leon Crowell, on a charge of eavesdropping laid by Mr. J. Elmore, of the Langkat Company.  Dr. F. E. Finckley (District Attorney) appeared for the prosecution in company with Mr. R. E. Gregson, of Messrs. Platt, Teesdale and Macleod.  Accused was undefended.

   The information read as follows:- Personally appears the undersigned John Elmore and, on his oath, stating that he is a British subject and that he here appears in his capacity of manager of the business firm of George McBain, agents of the Langkat Company, with an office at 53, Szechuen Road, Shanghai, China, in which office he was at all times mentioned herein, that is to say within the customary business hours of the day, transacting business of said company, and complains of Leon Crowell, an American citizen, for eavesdropping, in that said Leon Crowell, at Shanghai, China, heretofore and on or about August 16, 1914, and thence from time to time to, or about August 27, 1914, by means of placing and operating and causing to be placed and operated in said office of said complainant and between said office and a room by said Leon Crowell occupied in the building situate next north of and near to the building in which said officer was at all of said times located, one apparatus with wire connections said apparatus being numbered 5065 and being inscribed with the words "This instrument is leased and is the property of the National Dictograph Co,., New York City," wilfully, wrongfully and unlawfully listening to what was  said and done in said office and so listening for communications did eavesdrop, against the public peace.

Judgment.

   The decision of the court was as follows.  Judgment: - The complaint laid is of eavesdropping, a common law offence; to be classified as a public or common nuisance.

   In this examination, it is necessary to determine, not whether any nuisance has been committed, but whether that form of nuisance has been committed which is indictable as an offence, namely, a common or public nuisance.

   An analysis of eavesdropping as a public nuisance discloses two general classifications:-

   The nuisance to the public arises from the surreptitious acquisition by an unauthorized person of information which the public welfare demands shall be kept secret; not only from the community in general, but from any persons or group of persons in the community.  Here the emphasis is primarily upon the public nature of the information without regard to the further communication thereof by the eavesdropper.  One of the cases cited by the District Attorney is illustrative: that of State v. Pennington (10 Tenn. 3 Head, 299, 75 Amer. Dec.).

A person who secretly steals near the room occupied by the Grand jury, while they are engaged in the performance of their duties, in order that he may hear what they are saying and doing, is guilty of eavesdropping, and is liable to be indicted therefor.

Such a person might be the very one whose prospective indictment was under discussion.  The case before us is not analogous to the above in that the nature of the complaining parties is not the same; the one is representative of the public interest.  And it is immaterial that the range of the private interest is extensive, provided that it is not co-extensive and identical with the public welfare, becomes so merged therein as to lose its private character.

As a Public Nuisance.

   The common form of eavesdropping, however, as a public nuisance is not comprised within the above classification; but consists in the act of eavesdropping coupled with the subsequent dissemination of matters scandalous and disquieting to the community; or,. At least, coupled with a purpose so to disseminate.  The following definitions cover this form of eavesdropping:

  1. Eavesdropping by looking and listening at a window for the purpose of framing slanderous tales is an indictable offence. (State v. Lovett, Pa. 1831, 6 Pa. Law J. 226)
  2. Eavesdropping is the common nuisance of hanging about the dwelling house of another, hearing tattle, and repeating to the disquiet of the neighbourhood. (Bishop's New Crim. Law, Vol. I, Par. 1132.)
  3. Eavesdroppers, or such as listen under walls of windows, or the eaves of a house, to hearken after discourse, and there upon to frame slanderous and mischievous tales, are a common nuisance.  (4 Bl. Com. 168).

   The emphasis is here placed, not upon the damage to an individual, but upon the damage to the community, through the circulation of  slanderous and mischievous tales and through the unrestrained activity in the community of an individual committing such practices and likely to commit them against any individual of the community.  The busybody, detected in eavesdropping, is placed in the same category with the common scold.

Private Interests.

   Does the present case show this kind of public nuisance?  Complaint was not made of, and the examination did not reveal, the circulation of slanderous tales or even of business secrets, or of any kind of information whatsoever.  The evidence is sufficient to show that a listening took place; or at least, most careful action preparatory thereto and in connection therewith. To find a public nuisance, however, it must be inferred from this evidence that the purpose of the listener was to circulate slanderous tales through the community; or at any rate, under a liberal reading of this phrase, to circulate injurious business tales. But, if any inference is proper and natural to be drawn as to the purpose of such a listener, it is of another sort, the palpable motive being one of pecuniary or personal advantage.

   The manifest nature of the testimony of the complaining witnesses was the possible loss of business information valuable to an outsider.  Now it is not clear that such information may not have been heard and made use of by an actual listener without communication to a third person.  But, granted that it was the purpose of the listener to communicate such information , the whole purpose and profit of such a person would be nullified by anything like a general circulation or by any other course of action than an imparting of such information to those willing to pay for its exclusive possession.

   In other words, the case is essentially a matter of private interests and does not differ, in so far as its criminal aspects go, from the case of a man who listens to learn the names of a merchant's customers, business methods, etc., and uses such information to his own advantage. The novelty of the apparatus used, greatly enhancing the opportunities of the possessor, does not alter the principles involved; and, however repugnant such conduct may be to any sense of personal honour, I am unable to find that a criminal offence has been committed.

   It is, then, unnecessary to discuss the evidence with a view to ascertaining whether or not there is probable cause to believe the accused guilty of an offence.

   Accused was accordingly discharged.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School