Tribolet v. United States

95 P. 85, 11 Ariz. 436, 1908 Ariz. LEXIS 81

Opinion

CAMPBELL, J.

— 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 a verdict of not guilty be returned in favor of the Phoenix Wholesale Meat and Produce Company, a corporation, on the ground that there was no testimony warranting its conviction. The jury found the defendant, S. J. Tribolet, guilty, and from the judgment entered upon the verdict, and from the refusal of the court to grant a new trial, he brings this appeal.

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 of Phoenix. The combination and conspiracy is then described as having been “formed for the purpose of carrying out restrictions in trade and commerce in, increasing the price and preventing competition in the sale of certain commodities intended for sale and consumption in, the city of Phoenix, in the county of Maricopa, territory of Arizona, to wit, fresh beef, fresh mutton, fresh goat, and fresh pork, and for' the purpose of unlawfully fixing and maintaining uniform and graduated figures for the sale of said fresh meats in said city of Phoenix that the price thereof might be increased”; and then it is alleged that in further pursuance of said combination prices of meats were arbitrarily increased twenty per cent to purchasers by wholesale and forty per cent to purchasers by retail. A demurrer was interposed and overruled, and the ruling of the court in that respect is assigned as error.

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 some the words as used here seem to he regarded as synonymous. Mr. Justice Holmes, in his dissenting opinion in Northern Securities Co. v. United States, 193 U. S. 197, in discussing the act, says, at page 403, 24 Sup. Ct. 436, at page 469, 48 L. Ed. 679: “The words hit two classes of cases, and only two — contracts in restraint of trade, and combinations or conspiracies in restraint of trade.” The bill of the government in that case refers throughout to the acts of the defendants as constituting an “unlawful combination or conspiracy.” The majority opinion also frequéntly refers to the defendants as having engaged in a “combination or conspiracy,” and quotes with approval from the ease of Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. 173, 8 Am. Rep. 159, in which the supreme court of Pennsylvania says, in referring to a combination in violation of a state statute: “In all such combinations where the purpose is injurious and unlawful the gist of the offense is the conspiracy.” In Rice v. Standard Oil Co. (C. C.), 134 Fed. 464, Judge Panning quotes the words of Mr. Justice Holmes, and says: “In one count there may be a charge of an unlawful contract, and in another a charge of an unlawful combination or conspiracy; but the two unlawful things cannot be declared upon as synonymous terms, and charged in a single count.” See, also, Chicago W. & V. Coal Co. v. People, 214 Ill. 444, 73 N. E. 770. But whether the words have the same meaning, or whether they describe two offenses, they both have reference to the same object sought to be accomplished by the statute, to wit, the prevention of restraint of trade and commerce. In Crain v. United States, 162 U. S. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097, the indictment was drawn to charge an offense under section 5421, Revised Statutes (U. S. Comp. Stats. 1901, p. 3667), and alleged the doing of several different acts, and the causing to be done of the same acts, all of which acts and the causing to be done of such acts were prohibited by the statute. In discussing the indictment the supreme court says: “Undoubtedly the section of the Revised Statutes under which the indictment was framed embraces several distinct acts, the doing of either of which is punishable. . . . The second count charged in substance, not only that the defendant did things and each of them, the doing of which or either of which the statute prohibited, but also that he caused the doing of such things and each of them. Was the count, thus drawn, so defective as to require that judgment upon it be arrested? . . . We are of opinion that the objection to the second count upon the ground of duplicity was properly overruled., The evil that Congress intended to reach was the obtaining of money from the United States by means of fraudulent deeds, powers of attorney, orders, certificates, receipts, or other writings. The statute was directed against certain defined modes for accomplishing a general object, and declared that the doing of either one of several specified things, each having reference to that object, should be punished by imprisonment at hard labor for a period of not less than five years nor more than ten years, or by imprisonment for not more than five years, and a fine of not more than $1,000. We perceive no sound reason why the doing of the prohibited thing in each and all of the prohibited modes may not be charged in one count so that there may be a verdict of guilty upon proof that the accused had done any one of the things constituting a substantive crime under the statute. And this is a view altogether favorable to an accused who pleads not guilty to the' charge contained in a single count; for a judgment on a general verdict of guilty upon that count will be a bar to any further prosecution in respect of any of the matters embraced by it.” In enacting the statute under consideration the general purpose of Congress was to prevent restraint of trade and commerce. It is directed against certain defined modes of accomplishing that general object, and declares that the engaging in either of those modes, each having reference to that object, shall be punished. We think this indictment comes squarely within the rule as above announced by the supreme court, and that this objection to it is not well taken.

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 affect trade and commerce among all the states, or with all the foreign nations.

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.

The refusal of the court to give two certain instructions requested by appellant is assigned as error. The legal proposition involved in one is disposed of by what we have heretofore said, and the other was given in substance in the general charge of the court.

No error appearing, the judgment of the district court is affirmed.

SLOAN, DOAN, and NAVE, JJ., concur.