124 Ky. 543 | Ky. Ct. App. | 1906
Opinion op the Court* by
Affirming.
The indictment in this case charged the appellant of having entered into combination for the purpose of fixing the price of manufactured articles prohibited by section 3915 of the Kentucky Statutes of 1903, which reads as follows, to-wit: “That if any corpora
The indictment, as drawn and presented, by the grand' jury, charged the “International Harvester Machine Company” with the offense therein, set out, when the true name of the appellant was “International Harvester Company of America. ’ ’ Section 125 of the Criminal Code of Practice provides as follows, viz.: “An error as to the name of the defendant shall not vitiate the indictment, n.or proceedings thereon, and if his true name be discovered at any time before execution, an entry shall be made on the record of the court of his true name, referring to the fact of his being indicted by the name mentioned in. the indictment, and the subsequent proceedings shall be in the true name.” This was corrected by order of the court as provided in this section. While the order of the court Was not artfully drawn, it substantially met the requirement's of the Code. See Commonwealth v. Kelcher, 3 Metc., 485; Robinson v. Commonwealth, 88 Ky. 386, 11 S. W. 210, 10 Ky. Law Rep. 972, and Commonwealth v. Jenkins, 115 Ky. 62, 72 S. W. 363, 24 Ky. Law Rep. 1881. Appellant’s counsel contends that this section- of the Code is not applicable to corporations; that there is a very great difference between the individual and the corporation; the name does not constitute the individual, while the name is
The second assignment of error presented by appellant requires a brief discussion of the .evidence produced upon the trial. There were only three witnesses who testified, to-wit, N. E. Furlong, appellant’s general agent or manager for a district composed of 45 counties in Kentucky and 11 in Indiana, and two or three sales agents in Trimble county, Kentucky. Furlong testified that he w!as in full charge of appellant’s agency in Louisville, Ky., which covered the territory above mentioned; that he had been in charge since the agency was established about the year 1902; that shortly before he took charge of the agency that he was a traveling ag'ent in this State for the McCormick Harvester Company and had been such for about nine years; that during that time the following companies or corporations had established agencies in this State and sold harvesting machinery in competition with each other and the McCormick machine, to-wit.: The Champion by Warner, Bushnell & Co., Springfield, Ohio; Deering machine of the Deering Harvester Company, Chicago, Ill.; the Plano machine by the Plano Manufacturer, Plano, Ill.; the Milwaukee machine by the Milwaukee Harvester Machine Company, Milwaukee, Wis., and the Osborn machine, the resi
Appellant contends that the instruction gave the Trimble circuit court extraterritorial jurisdiction-. In other words, counsel says that it authorized the jury to find appellant guilty for an offense committed out
Prom the evidence it is certain that there was a combination or agreement, to fix the price of these machines referred- to, entered into by the owners thereof, and possibly others. It is pretty certain that that agreement was made outside of this State, and if they had never come into this State- to execute the agreement, or any part of it, they would not be liable to punishment here; but the proof shows that they were executing the agreement in this State, and possibly the agent of appellant, in this State, entered into the combination or agreement, after they entered this State, to carry out the agreement, and under tire authority referred to such agent occupied the same position as the original parties to the unlawful agreement.
What we have said about instruction. No. 1 obviates the necessity of a discussion of the instructions offered by the appellant.
At the last session of the General Assembly, ,in 1906, it enacted a statute to make it legal for farmers to unite and pool their crops, etc. The appellant claims that act is unconstitutional, and has the effect to make all of the statutes on the subject of pool, trust, combination, etc.,unconstitutional. Itisnotnecessaryto determine this question, as the offense charged in the indictment was committed and the indictment found long before that act was passed. See section 465 of Kentucky Statutes of 1903, which reads as follows: “No new law shall be construed to repeal a former law as to any offense committed against the former law, nor as to any act done, any penalty, forfeiture, or punishment incurred, or any right accrued or claim
For these reasons, the judgment of the lower eouru is affirmed.