192 F. 1 | 6th Cir. | 1911
(after stating the facts as above).
We must presume regularity in all cases where the contrary is not expressly shown, and we think the proper inference from this record is that the counties, or the part of the district, to which the drawing was confined, had been designated by the order of the court referred to or were selected with the knowledge and approval of the judge. Whether we should also infer from this record that the apportionment which the clerk made among the several counties was' pursuant to an order of the court or an established practice approved by the court, or whether we should infer that the clerk’s action was without any sanction of thé court, we think immaterial to the disposition of this case. In the former event, there would be no irregularity. In the latter case, it is enough to say that the method adopted by the clerk would have been the natural and reasonable method for the court to adopt, had it given instructions on the subject. It did not result in any grand jurors from an unauthorized district or any incompetent grand jurors; and, if irregular at all, the overruling of a motion to quash, based thereon, would not be such a plain error, as, under rule 11 (150 Fed. xxvii, 79 C. C. A. xxvii), we ought to notice in the absence of any assignment.
“Trade,” as referring to a business which must have a fixed continuance and established character in order to be in existence so as to be subject to a tax or so as to be carried on within a state, cannot be synonymous with “trade” in the sense of commerce or traffic or transportation from one place to another; and so decisions like Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, 734, 5 Sup. Ct. 739, 28 L. Ed. 1137, are not relevant.
In the Packet Company Case, the interference under consideration, aside from that dependent on the sale of the vendor’s good will, was indirect, contingent, and uncertain. The court did not say that the amount of traffic was too insignificant to require action, but that this uncertain, remote, and contingent interference was insignificant. In the present case the interference was absolute and entire. All of the traffic or commerce involved was wholly stopped.
We do not find in the Standard Oil and 'Tobacco Cases any holding that a direct restraint of trade must affect an unreasonably great amount of commerce in order to be within the prohibition. As we read these opinions, the matter under consideration, from the standpoint of reason, was not the amount of merchandise or traffic affected by the restriction, but the character and extent of the restriction itself ; and it was thought that, if such restriction reasonably pertained to lawful results, it was not of itself necessarily forbidden. These opinions contain no justification for the idea that a direct and absolute restraint, bearing no reasonable relation to lawful means of accomplishing lawful ends, can be permitted only because the volume of traffic affected is not very great.
We cannot doubt that there may be a consffiracy under the act with reference to a single shipment only, and that, in so far as the rule of insignificance may exist, it does not apply to circumstances like these. This shipment was the entire crop of these three farmers for the year. It was, to them, of large relative value. It cannot be overlooked as unimportant; and its shipment to Ohio did constitute “interstate trade and commerce.” It was clearly interstate transportation; and interstate transportation is interstate commerce. U. S. v.
The next ground of demurrer is that the indictment did not sufficiently allege that the accused, at the time of their conspiracy, or while acting thereunder, knew that the tobacco was an article of interstate commerce. A conspiracy of this general character is a crime at common law, and presumably was in Kentucky, and we are not clear that it is necessary to allege scienter as to the specific fact which makes the crime cognizable in one court instead of in another; but, however that may be, we think the guilty knowledge is sufficiently alleged. The indictment alleges that the tobacco in fact entered upon its interstate shipment; that then the defendants unlawfully did knowingly conspire together and engage in a conspiracy among themselves, in restraint of said interstate trade and commerce so carried on by said Osborne and said railroad company; that one means of such conspiracy participated in by defendants was to frighten Ramsey for the purpose ■ of preventing him from shipping this tobacco to Cincinnati, to which point it had been consigned,; that another means was to compel Osborne to remove this tobacco, consigned as aforesaid; that another means was by taking the tobacco by force from the railroad, and thereby, to prevent the transportation of said tobacco from Dry Ridge, Ky., to Cincinnati, Ohio; that then they were to use every means in their power to prevent Osborne from shipping said tobacco from Kentucky to Ohio. We cannot doubt that the defendants were by these allegations fairly charged with knowing at the time that their conspiracy was directed against to-'
The indictment is further attacked because so many different, contemplated means of accomplishing the conspiracy are alleged, and it is said that this makes the indictment vague and uncertain. It is not open to this objection. The allegations of the various means in contemplation are not of simultaneous and inconsistent plans, but plans for successive action, one step of which should be taken if previous steps failed. Complaint as to such an ’indictment would come with better force from the government which might have been embarrassed by so specific an allegation of all the plans involved.
“He told me my liusband could now ship his tobacco off; that they had concluded to let it go. XXe says, we are going to let it go now, that others are shipping.”
“It is true, as counsel has stated, that you are the triers of these facts. It is for you to determine them.”
After the charge had been finished and exceptions taken, he additionally instructed the jury:
“Gentlemen of the jury, a word or two about what I said with reference to what took place in regard to this tobacco. I have said that certain facts are shown by the. evidence, or used the expression ‘the evidence shows.’ What I meant to say was that the testimony of the witnesses was to the facts as stated. You are the judges of the credibility of the witnesses and the weight to be attached to their testimony, and of the facts shown by their testimony. I have aimed to state all the facts and circumstances testified to in this case. If 1 have omitted any, you will bear them in mind, and give them such weight as they are entitled to.”
In the course of his summary of evidence, the court said:
“There is no room for question that it was lcndwn by the parties who may be guilty as charged here that it was intended for shipment to Cincinnati,, Ohio.”
The evidence, if credible, did show beyond question that each of the respondents was present at the taking of these hogsheads at the station, loading them into the wagons and carrying them away, and that each hogshead was prominently marked with its destination.
Referring to the good character evidence, the court said:
“This is all the evidence that has been introduced before you favoring the defendants.”
. And, speaking generally of the government’s evidence, further said:
“That evidence, so far as it goes, has not been contradicted by any witness. There is no conflict in the evidence. ⅜ * * There is no conflict whatever in the evidence here, save in so far as the showing by these wit*9 nesses may be antagonized by tbe presumption of innocence, and the fact that these defendants are in good standing.”
Elsewhere the jury was fully instructed as to the rule of presumption of innocence and of reasonable doubt. Counsel argue that these instructions were wrong, because the cross-examination of the government’s witnesses furnished evidence for respondents and raised conflicts in the evidence, and because such instructions foreclosed the credibility of the government’s witnesses.
With reference to these two recited comments on the evidence, we think that in connection with the other instructions and cautions to the jury they were not beyond the proper limits of that discretion which judges of federal courts have in this particular. Simmons v. U. S., 142 U. S. 148, 155, 12 Sup. Ct. 171, 35 L. Ed. 968.
Referring to the visit at Osborne’s house Thursday evening by Webb, Carter, and Conrad, and to what they said to Osborne, the court said:
“Under the evidence, and there is no room for difference of opinion as to the matter, that was a threat to Osborne that, if he did not assign over the bill of lading, his tobacco would be destroyed. It was under that threat that he assigned and turned over his bill of lading.”
It was the theory of these three respondents that they had learned of the plan to take the tobacco away from the railroad, and perhaps destroy it, but had'no part in such plan, and that they went to Osborne merely as a friendly act to warn him of the existence of the danger, and to advise with him as to whether it would not be wiser for him to yield his position. Under the evidence, there is no room for difference of opinion that Osborne received from these visitors a threat. There is room for difference of opinion whether the threat was by them as to what they would do or what would be done with their approval, or whether they were merely conveying to Osborne information that a threat was being made by others. If their visit to him and their whole connection with the entire transaction were of this latter character only, they were not guilty under the indictment, and they were entitled to have from the court a specific instruction of this character; but if any of the associates, in a conspiracy like this, were really attempting to accomplish its object, it would be very natural for them to accompany their visit to Osborne with protests of their personal friendship and their personal efforts to protect him, and these protestations in this case, made under such circumstances, were merely evidence to be considered by the jury in connection with everything else done by these three men in determining the real character of their actions. The case was of that class where adverse inferences of a broad and general, and perhaps a natural, character, may be drawn against respondents from the conceded facts, but wrhere, under a specific theory of their application, those facts may be consistent with innocence. Respondents did not request any such specific instructions. It is not to be supposed that respondents’ counsel failed to argue to the jury, with the same force with which they have argued the same point in this court, that, if these three defendants did not in fact participate in the conspiracy but only carried a friend
The record does not indicate to us any miscarriage of justice, and the several respective judgments of conviction and sentences will be affirmed.