184 F. 543 | E.D. Pa. | 1910
The defendant is indicted upon the charge of granting and giving a concession‘in respect to the trails-portatiou of property in interstate commerce in violation of the provisions of Elkins Act Feb. 19, 1903, c. 708, 32 Stat. 847 (U. S. Comp. St. Supp. 1909, p. 1138), and also for failing to strictly observe tlie published tariff rates until changed according to law.
At the trial, upon a jilea of not guilty, the defendant was convicted, with a recommendation to the mercy of the court. A motion and 26 reasons for a new trial were duly filed. All the reasons assigned will not he considered, as many of them are based upon questions of law which were fully considered in the charge of the court. Three propositions, however, were discussed by counsel at the argument on the motion for a new trial, to which reference will he made. They are:
First. That there was no settlement for demurrage charges on cars against the Bethlehem Steel Company for the period from April 1 to
Second. That the alleged concession was simply the settlement of a disputed claim for demurrage on cars of the defendant used in transporting interstate freight to the Bethlehem Steel Company, and that the Bethlehem Steel Company had established a legal defense to this claim, which was acknowledged by the defendant, and the cancellation of the charges made. This was also a question of fact which was properly submitted to the jury, and the verdict establishes- the contention of the government that it was not -a valid settlement of a disputed claim but was the cancellation of a demurrage charge by the defendant for the purpose of making a concession to the Bethlehem Steel Company in the matter of charges, in violation of the interstate commerce act.
Third. That the giving or receipt of a concession being the gist of the offense, the court should have instructed the jury that inasmuch as the defendant in one settlement on December 29, 1908, canceled the demurrage charges against the Bethlehem Steel Company, which cancellation constituted the granting but one concession by the defendant to the Bethlehem Steel Company, the jury could not return a verdict of guilty upon each count of the indictment for each car, though subject to a demurrage which was included in the whole settlement. In other words, as indictment No. 25 contained 63 counts, and indictment No. 26, 24 counts, each based upon a concession granted by the defendant to the Bethlehem Steel Company on demurrage charges on separate car loads, theré could be no conviction. There was only the one settlement which took place on the date mentioned when the whole alleged concession was consummated. It is true that the defendant is charged in indictment No. 25 in 63 counts with failing to strictly observe its tariffs during the period mentioned, and in indictment No. 26 the defendant is charged on the 24 separate counts, in similar manner, with granting a concession in demurrage charges on separate car loads. Upon the indictment charging a failure to strictly observe the tariff sheets, the government offered evidence to show that on each of these separate car loads the defendant failed to collect the demur-
The charges for demurrage, as set forth in the published tariffs of the defendant, were upon car loads, and it was incumbent upon the government in charging the offense to specifically set forth the nature, and, if possible, the amount of the concession, and to point out what particular tariff charges the defendant violated and failed to observe in making the concession; and, as was said by the court, in the case of United States v. New York Central Railway Company (C. C.) 157 Fed. 293, “if the indictment declared upon one carriage and one payment, and it appeared that there were many carriages for one payment, there would be danger of a variance, and so also it might be impossible to prove all the carriages and all the rebates aggregating the payment made.” It is a well-recognized principle of criminal law that if there is any one count to support the verdict, it shall stand good, notwithstanding all the rest are bad. Claasen v. United States, 142 U. S. 140, 12 Sup. Ct. 169, 35 L. Ed. 966; Locke v. United States, 11 U. S. 339, 3 L. Ed. 364; Clifton v. United States, 45 U. S. 242, 11 L. Ed. 957; Evans v. United States, 153 U. S. 595, 14 Sup. Ct. 934, 38 L. Ed. 830; Goode v. United States, 159 U. S. 669, 16 Sup. Ct. 136, 40 L. Ed. 297; Greene v. United States, 154 Fed. 401, 85 C. C. A. 251. In the case at bar, the most that can be urged is that the same offense in each indictment is charged in more than one count. Each count, however, is properly drawn, and the crime charged established to the satisfaction of the jury by competent evidence, and it cannot be denied but that the evidence in support of the single concession was competent proof to establish the allegations set forth in each count in the indictment. The defendant is not in any wise prejudiced by the general verdict of guilty on each indictment if the penalty for only one offense be imposed. The decision of the Circuit Court of Appeals in the case of Standard Oil Company v. United States, 164 Fed. 376, 90 C. C. A. 364, is not in conflict with
The view of the court upon other questions of law which are now urged, as reasons for a new trial is fully set forth in the charge, and entirely unnecessary to repeat.
The motion is therefore overruled.