95 P. 85 | Ariz. | 1908
— P. T. Hurley, S. J. Tribolet, and the Phoenix Wholesale Meat and Produce Company, a corporation, were indicted for a violation of the provisions of section 3 of the act of Congress’ approved July 2, 1890, chapter 647, 26 Stat. 209 (U. S. Comp. Stats. 1901, p. 3201), commonly known as the “Sherman Anti-Trust Law,” which reads: “Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or commerce in any territory of the United States or of the District of Columbia, or in restraint of trade or commerce between any such territory and another . ,is hereby declared illegal. Every person who-shall make any such contract or engage in any such combination or conspiracy shall be deemed guilty of a misdemeanor. ...” Upon the trial Hurley testified on behalf of the United States and was given immunity , the indictment against him, upon motion of the government, being dismissed. In submitting the case to the jury the trial court directed that
The indictment charges that the defendants, “on or about the first day of September, A. D. 1906, and within the said third judicial district of the territory of Arizona, and within the county of Maricopa in said territory of Arizona, did then and there unlawfully, ’ willfully, and knowingly engage in a combination in form of trust and into a conspiracy each with the other in restraint of trade and commerce in the city of Phoenix, in the county of Maricopa, and within said third judicial district of the territory of Arizona, in the manner following: That on and prior to the first day of August, 1906, P. T. Hurley and J. C. Hurley, under the firm name of P. T. Hurley, S. J. Tribolet, A. Weiler, and the Co-operative Meat Company, were engaged in the business of slaughtering beef cattle, sheep, goats, and swine, and selling at retail and wholesale the fresh meats thereof in said city of Phoenix, and were each of them then and there engaged in said business in open and free competition with the others; that thereafter, to wit, on or about the twenty-third day of August, 1906, the said P. T. Hurley and J. C. Hurley, under the firm name of P. T. Hurley, and the said S. J. Tribolet, being then and there engaged in a combination in form of trust and in a conspiracy in restraint of trade and commerce, and in furtherance of said combination and said conspiracy in restraint of trade, and commerce. ’ ’ Then follow allegations that the defendants Hurley and Tribolet obtained control and possession of the Co-operative Meat Company and discontinued its business; that they, in further pursuance of the combination and conspiracy, organized the defendant corporation and transferred to it the business theretofore conducted by each of them, receiving in exchange the capital stock of the corporation, and that they became the directors and officers of the corporation, and as such conducted its affairs; that all of the defendants, in furtherance of the combination and conspiracy, thereupon purchased the business of Weiler, and caused it to be transferred to the corporation, and caused Weiler to execute a contract with the corporation whereby he agreed not to again engage in the business of slaughtering fresh meats in the city
It is claimed that, if any offense is pleaded, the indictment is bad for duplicity, for that three separate and distinct offenses are alleged in the single count of the indictment, namely: (1) The making of a contract in restraint of trade and commerce; (2) a combination in form of trust in restraint of trade and commerce; (3) a conspiracy in restraint of trade and commerce, and that the statute denounces each of them as a separate and distinct offense. As we view the indictment, it does not charge the defendants with the making of a contract which in itself was in restraint of trade and commerce. It would be difficult, if not impossible, to effect a combination or conspiracy without a contract or agreement. "We construe the indictment as alleging the contract to have been made as one of the steps by which the combination was brought about, and as an overt act in furtherance of 'the conspiracy. The indictment does, however, directly charge a combination and conspiracy. It appears to be appellant’s contention that Congress means to punish as conspirators those who engage to do those things which are unlawfully in restraint of trade or commerce, though in fact no restraint is accomplished, and also to denounce a combination which actually results in restraint of trade or commerce and punish those who engage in it. The meaning of these terms as used in this section, which are precisely those used in the first section of the act, which relates to interstate commerce, have been commented upon by different courts, but the difference between a combination and a conspiracy in restraint of trade, if any exists, has not authoritatively been pointed out. By
It is next urged by the appellant that the indictment does not charge any violation of the law, for the reason that it charges an engaging in a combination and conspiracy in restraint of trade and commerce in the city of Phoenix, and not in or throughout the territory; that the act prohibits only those combinations and conspiracies which affect substantially the trade or commerce of the entire territory, and not those in restraint of the trade or commerce of a particular community. We think the construction contended for entirely too narrow. It might as justly be claimed that the language of the first section making illegal such combinations or conspiracies “in restraint of trade among the several states or with foreign nations” applies only to those combinations which directly
Appellant further contends that the indictment is insufficient, for the reason that it is not direct and certain, and charges a combination or conspiracy only in the language of the statute without stating the objects, purposes, and ends to be achieved. We think the indictment open to criticism as to not being direct and certain as to some of its allegations. The confusion arises from the pleader first charging the offense in the language of the statute, and not fully stating its purposes and objects until after the overt acts are described. The defect, however, is one of form rather than one of substance, and does not tend to the prejudice of the defendant. Therefore the indictment is not invalid. Rev. Stats., sec. 1025 (U. S¡ Comp. Stats. 1901, p. 710).
It is further claimed that the indictment should allege the means by which the combination or conspiracy was to be accomplished; but this we regard as unnecessary, since the object to be attained by the combination or conspiracy in itself is unlawful both at common law and by statute. See authorities collected in 8 Cyc. 667.
The refusal of the court to direct a verdict of not guilty as to appellant is assigned as error. His argument in support of this assignment, if we apprehend it correctly, is not that the evidence does not disclose that he engaged in the combination and conspiracy with the defendant Hurley, but since his acts centered in and about the corporation, and he simply acted as its officer and stockholder, he could not be guilty and the corporation innocent. The corporation was the instrument by and through which the combination of those who promoted it became effective, and, had there been a verdict of guilty against it, we should have been disposed to hold it supported by the evidence, for the same reasons given by the supreme court for holding that “the securities company made itself a party to a combination in restraint of interstate commerce that antedated its organization, as soon as it came into existence, doing so, of course, under the direction of the very individuals who promoted it.” Northern Securities Co. v. United States, supra.
There was sufficient evidence to warrant the jury in arriving at the verdict which they returned, and we will not disturb it, even though the trial court may have erred in directing a verdict of not guilty as to the defendant corporation.
No error appearing, the judgment of the district court is affirmed.
SLOAN, DOAN, and NAVE, JJ., concur.