255 F. 423 | N.D. Ill. | 1918
“Nor-shall any of the acts specified in this paragraph be considered or held to be violations of any law of the United States.”
The strike in this case had nothing to do with a dispute over wages, as the jury found; so the Clayton Act is entirely inapplicable. I think that section 20 was intended to legalize lawful strikes, and-peaceful, lawful persuasion of workmen. The orders which were issued to workmen in this case were dishonest and corrupt, and they were given no reason for their ceasing work. The statute has no application to such a situation. The Sherman Act is thus left in full force in cases like this. The Clayton Act does not authorize molestation of employés by strikers. Kroger Grocery, etc., Co. v. Retail, etc., Co. (D. C.) 250 Fed. 890. Nor does it apply to an unlawful act like a secondary boycott. United States v. King (D. C.) 250 Fed. 908.
It is then alleged that on June 23, 1914, defendants unlawfully and knowingly conspired together and engaged in a conspiracy in restraint of interstate commerce, which conspiracy “was a conspiracy for restraining interstate trade and commerce of said McLaughlin Building Material Company and said railroads in the several ways and by the several means now here set forth and described”: (1) By preventing the hauling of sand, etc. (2) By causing the sand, etc., to remain upon and in the cars in the possession of said railroad companies so transporting the materials to their destination which materials were then in interstate commerce, “said defendants planned and intended to' prevent the delivery of said materials contained in said .cars.” It also states that defendants did prevent such delivery. (3) By influencing and causing the persons employed to unload and haul the sand, etc., not to do so.
While it is not directly charged that defendants agreed to obstruct commerce by preventing delivery of the cars or material to the Me
But there is nothing to show what influence defendants could have with the workmen, that there was any strike, that defendants levied blackmail on McLaughlin and called a strike to bring him to time, that the workmen quit, and that this caused the railroads to reroute the material cars, as a direct result. Not one of these things is even hinted at. The prosecution could equally well have proved threats to kill the workmen if they hauled for McLaughlin, or persuasion or any other form of influence. A labor dispute over wages with a teaming company for whom the teamsters worked, causing a lawful strike, might, have been shown, and this was attempted by the defense. Defendants were in no way informed of the details of what they were required to meet and prepare to disprove. They were given no hint that they would be charged with collecting $2,000 blackmail from McLaughlin, and calling a strike on him because he refused to pay $500 more, or to comply with a later demand for $5,000.
. The question is, therefore, whether this indictment can be held sufficient under the liberal rule now existing. Defendants have raised the question in every possible way, by demurrer, motion to dismiss and discharge on the trial, motion to direct a verdict, motion to quash, and finally in arrest.
The modified rule of sufficiency of indictment is stated by the Circuit Court of Appeals of this circuit in Jelke v. United States, 255 Fed. 264, - C. C. A. -, October term, 1916, where the prosecution was under section 5440, requiring the pleading of an overt act. In that case it was alleged that defendants agreed that they would “cause” certain named persons to mix artificial coloring matter with oleomargarine to cause it to look like butter of a shade of yellow, and agreed among themselves to furnish and cause to be furnished to such named persons tub liners for packing the colored product, and paper wrappers for packing it, also to “cause” said persons to do other things definitely stated, all in order to escape taxation. How the defend
The rule of the Jelke Case is thus stated by Judge Evans:
“An indictment is generally sufficient which charges a statutory crime substantially in the words of the statute, except in such cases where other precedents have been firmly established in analogous .offenses at common law, or where such a charge would not fairly inform the accused of the nature of the charge.”
This statement of the law rejects all'objections merely technical, so that it is necessary only to consider whether this indictment fairly informs the accused of the nature of the charge. In applying this rule the court in the Jelke Case approves decisions holding that section 5440, by requiring the pleading of an overt act, intended to relieve the pleader from the necessity of setting out the means agreed on by which the conspiracy was to be carried out. United States v. Dennee, Fed. Cas. No. 14,948; United States v. Goldman, Fed. Cas. No. 15,225. Bannon v. United States, 156 U. S. 468, 15 Sup. Ct. 469, 39 L. Ed. 494, is also cited as authority, in which it is said;
“At common law it was neither necessary to aver nor prove an overt act in furtherance of the conspiracy, and indictments therefor were of such general description that it was customary to require the prosecutor. to furnish the defendant with a particular of his charges. Rex v. Gill, 2 Barn. & Ald., 204; Rex v. Hamilton, 7 Car. & P. 448; U. S. v. Walsh, 5 Dill. 58, Fed. Cas. No. 16,636. But this general form of indictment has not met with the approval of the courts in this country, and in most of the states an overt act must be alleged. The statute in question changes the common law only in requiring an overt act to be alleged and proved.”
People v. Arnold, 46 Mich. 268, 9 N. W. 406, is also approved, m which Judge Cooley'said:
“It is conceded that, if the act which the conspirators combine to perform is unlawful, it is not necessary to set out .in the information the means intended to be employed in accomplishing it * * * But if the end in view is lawful or indifferent, and the conspiracy only becomes criminal by reason of the unlawful means whereby it is to be accomplished, it becomes necessary to show the criminality by setting out the unlawful means.”
The Court of Appeals also distinguished United States v. Cruikshank, 92 U. S. 542, 557, 23 L. Ed. 588, and Evans v. United States, 153 U. S. 584, 14 Sup. Ct. 934, 38 L. Ed. 830.
Since it is the agreement or conspiracy which is made unlawful by the Sherman Act, and no overt act is required to complete the offense, as is the case under section 5440 (United States v. Patten [C. C.] 187 Fed. 664, United States v. Cowell [D. C.] 243 Fed. 730), the question is only whether the agreement is sufficiently stated. The indictment purports to state the means by which the offense was to be carried out, but does not give all the particulars. The agency for the unions, the blackmailing, a further demand for money, and then
The motions in arrest of judgment should he overruled.