145 N.Y.S. 748 | N.Y. App. Div. | 1914
This appeal is from a judgment convicting the appellants of the crime of conspiracy under section 580 of the Penal Law. Nineteen defendants were jointly indicted, of whom eighteen were tried together. One was acquitted by direction of the court, four found not guilty, and the remaining thirteen, the present appellants, convicted and each sentenced to be imprisoned in the penitentiary for three months, and in addition thereto pay a fine of $500. The defendants were engaged in buying and disposing of poultry in the city of New York, and were indicted for having conspired to suppress competition and to maintain and regulate the market price of poultry. Prior to the formation of the pool hereinafter mentioned this business was carried on in substantially the following way: The poultry was purchased by shippers, so called, from the producers; they shipped the same to receivers, who sold it on commission to jobbers; they sold it to slaughter house men, who, in turn, killed and then sold it to the retailers. Nine of the defendants were receivers, eight of them jobbers and two both receivers and jobbers. In June, 1906, the principal receivers of poultry in the New York market, including those who are defendants, formed the New York Live Poultry Commission Merchants’ Protective Association. This association was formed mainly for the purpose of pooling the commissions by all of the members, to the end that the same might be divided among them in a certain proportion fixed by the articles of association. Some time prior thereto, for a similar purpose, the jobbers had formed the Jobbers’ Association of West Washington Market, of which all the jobber defendants were members. After the formation of the former association it entered into an agreement with
This fact was not seriously disputed at the trial or upon the argument of the appeal. It was, however, strenuously urged that, notwithstanding this may have been the result of the defendants’ acts as members of the associations referred to,
But it is said the judgment of conviction should be reversed for certain errors which in no way affect the merits. ' The principal point urged in this connection is that the provision of the Penal Law (§ 580) under which the indictment was drawn and the case submitted to the jury was not in force, since it, or rather the statute of which it was a re-enactment, had been repealed by implication by sections 1 and 2 of chapter 690 of the Laws of 1899 which have been re-enacted as sections 340 and 341 of the General Business Law. The section of the Penal Law referred to is a re-enactment of section 168 of the Penal Code (Laws of 1881, chap. 676), and provides, among other things, that “If two or more persons conspire: 1. To commit a crime; or * * * 6. To commit any act * * * injurious to trade or commerce, * * * Each of them is guilty of a misdemeanor.” Section 1 of chapter 690 of the Laws of 1899 (now section 340 of the General Business Law) was enacted- subsequent to the enactment of section 168 of the Penal Code, and provides that “Every contract, agreement,' arrangement'Or combination whereby a monopoly in the manufacture, production or sale in this State of any article or commodity of common use is or may be created, established or maintained, or whereby competition in this State in the supply or price of any such article or commodity is or may be restrained or prevented, or whereby for the purpose of creating, establishing or maintaining a monopoly within this State of the manufacture, production' or sale of any such article or commodity, the free pursuit in1 this State of any lawful business, trade or occupation is or may be
But even if it were held that section 580 of the Penal Law were repealed by the sections of the General Business Law to which reference has been made, nevertheless I think this con
The conviction can also be sustained as one prosecuted under subdivision 1 of section 580 of the Penal Law as a conspiracy to commit a crime, viz., the one prohibited by the sections of the General Business Law.
It is also urged that error was committed in admitting in evidence certain entries in a book of account kept by the treasurer of the joint association, who was also treasurer of the receivers’ association. The book was kept by him as part of his official duties. It showed all sums received and disbursed, by him as treasurer of the two associations. It was admitted in evidence and then the learned district attorney proceeded to question the treasurer as to three specific entries. Defendants’ counsel moved to have those entries stricken from the record, which the court refused, and to which an exception was taken. I think the ruling was correct. The entries were, “End of the year. War will be declared now very soon,” which was written immediately after the regular entries for February 6,1909. The next entry was, “Three weeks’ period of unrest,” written immediately before the entries for February thirteenth; and “War is over,” written after the entries for February twenty-seventh. There is at least some evidence in the record to the effect that about this time active steps were taken by the asso
Finally, it is claimed the defendants did not have a fair trial by reason of the misconduct of the district attorney in making certain remarks, especially in regard to defendants’ counsel. The conduct of defendants’ counsel was, in the main, responsible for the remarks and defendants are not now in a position to complain thereof. Besides, the jury could not possibly have been influenced by them. It was instructed time and again to disregard them and to decide the issues solely upon the evidence.
Other points are raised by the appellants, but after an examination we find none of them which require consideration.
The judgment of conviction is, therefore, affirmed.
Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.-
Judgment and order affirmed.