Syllabus. any one, and its investigations and proceedings are and should be kept secret, except when the interests of justice require that a disclosure be made. 4. GRAND JURY 41-HAVE INHERENT POWER TO PREVENT ABUSE OF THEIR PROCESS.-Courts of law have inherent power over their own process, to prevent abuse of discretion and injustice, and in the exercise of that power may disregard the secrecy of grand jury proceedings whenever the ends of justice require it. 5. GRAND JURY 1-NOT AN INDEPENDENT BODY AND IS SUBJECT TO CONTROL OF COURT.-A grand jury has no existence aside from the court which calls it into existence and on which it is attending, and does not, after it is summoned, become an entirely independent body, in view of Judicial Code, §§ 284, 285 (Comp. St. §§ 1261, 1262), giving the court discretion to summon and discharge a grand jury, so that it cannot function at its uncontrolled will or the will of the district attorney or special assistant. 6. [220] GRAND JURY 36-PROCESS TO COMPEL ATTENDANCE OF WITNESSES IS THAT OF THE COURT.-The process by which witnesses are compelled to attend a grand jury investigation is the process of the court, and not of the grand jury or the district attorney, and the court has a supervisory duty of seeing that its grand jury and its process are not abused or used for purposes of oppression and injustice. 5. GRAND JURY 1-NOT AN INDEPENDENT BODY AND IS SUBJECT TO CONUSE IN ANOTHER DISTRICT HELD ABUSE OF PROCESS.-Where an indictment was already pending in another district, subpoenas for witnesses to attend and produce documents at a grand jury investigation of the same charge, which was mainly for the purpose of enabling the government to procure testimony to be used in the trial of the other indictment, though it intended to ask for an indictment by that grand jury, on which, however, defendants would be tried only in the event the other indictment was dismissed for want of prosecution, was an abuse of process, so that such subpoenas will be vacated and set aside and the grand jury investigation restrained, until the government either has tried the defendants in the other district or stipulates for trial first on any indictment obtained from this grand jury. 8. CRIMINAL LAW 113-CONSPIRACY TO VIOLATE ANTI-TRUST ACT MAY BE PROSECUTED WHEREVER OVERT ACT IS COMMITTED.-Though indictments for conspiracies in violation of the Sherman Anti-Trust Law (Comp. St. §§ 8820-8823, 8827-8830) need not aver an overt act to complete the offense, prosecutions for such conspiracies may be maintained in any jurisdiction where an overt act has been committed, the same as in cases of other conspiracies. Opinion of the Court. 9. CRIMINAL Law 200(6)—FORMER PROSECUTION FOR SAME CONSPIRACY BARS SUBSEQUENT PROSECUTION ON OVERT ACT THEREAFTER.-A conviction or an acquittal on an indictment for continuing conspiracy bars another prosecution based on the same conspiracy, but different overt acts, during the period subsequent to the return of the indictment on which the conviction or acquittal was had. Summary application by the National Window Glass Workers and others to quash and vacate certain subpoenas and subpoenas duces tecum requiring applicants to appear and give testimony and to produce documents in a grand jury investigation. Application granted. Calfee, Fogg & White, of Cleveland, Ohio, for National Window Glass Workers. Squire, Sanders & Dempsey, of Cleveland, Ohio, for National Association of Window Glass Mfrs. WESTENHAVER, District Judge. The parties named in the caption hereof filed in this court October 9, 1922, an application to quash, vacate, and set aside certain subpoenas and subpoenas duces tecum duly served, requiring them to appear and give testimony and also produce documents in a grand jury investigation about to be undertaken by a grand jury attending upon this court. Similar applications, were filed herein October 9, 1922, by John R. Johnston, jr., vice president of the Johnston Brokerage Company, and October 12, by American Window Glass Company, William L. Monro, R. M. Speer, Thomas Moore, and George H. Mayer, and October 12, by J. W. Rutter, W. C. Hoffman, Harry G. Tussey, Frank Mason, and E. R. Pierson, and October 13, by Andrew R. Dole. All these applications are supported by affidavits [221] and seek relief on the same ground. No opposing affidavits have been filed. The grounds upon which relief is sought are the following: (1) That the grand jury investigation in which these several witnesses are to testify, and with respect to which the documents are to be produced, is being carried on as to a supposed offense already investigated by a grand jury in the United States District Court for the Southern District of Opinion of the Court. New York, and as to which an indictment against the American Window Glass Company and some 90 other defendants has already been presented and is now pending and awaiting trial, and that the present investigation, being directed to the same alleged offense, is an abuse of the process of this court, in that the dominating, if not the only, object is to examine witnesses in advance of trial, and to procure evidence for use in the trial of defendants on said indictment now pending in the Southern district of New York. (2) That said subpoenas and subpoenas duces tecum are insufficient and invalid, in that they do not correctly and sufficiently describe the cause or nature of the proceedings with respect to which said witnesses are required to appear and testify, and with respect to which said documents are required to be produced, nor the name or names of any persons against whom the present grand jury investigation is directed. Certain other grounds are urged in the moving papers of some of the applicants directed to the form and sufficiency of the subpoenas duces tecum, but upon hearing before me the above grounds were the only ones urged and relied on; hence in this memorandum all other objections will be ignored. [1] The second ground of relief will be first disposed of. Neither the subpoenas nor the subpoenas duces tecum give any information as to the matter or proceeding, nor the names of persons supposed to have committed offenses, as to which the present investigation is about to be instituted. These subpoenas merely require the witnesses to appear and testify on behalf of the United States. Some of them describe the matter as to which witnesses are to testify, or with respect to which documents are to be produced, as being on behalf of the plaintiff in the case of United States v. Grand Jury. Section 877, R. S. (section 1488, U. S. Comp. St. 1916), provides that witnesses who are required to attend any term of a District Court on the part of the United States "shall be subpoenaed to attend to testify generally on their behalf, and not to depart the court without leave thereof, or of the district attorney; and under such process they shall appear before the grand or petit jury, or both, as they may be required by the court or district attorney." Judged by this Opinion of the Court. language, the subpoenas would appear to be sufficient in form. Apparently a witness subpoenaed in a criminal case to testify on behalf of the United States, either before a grand or petit jury, need only be summoned to testify generally on behalf of the United States. After he appears, he may be required to appear and give testimony before either jury. Such, also, seems to be the uniform trend of decision. It has been repeatedly held that no specific charge against any person, nor any description of any alleged offense, is necessary in compelling a witness to testify before a grand [222] jury, and that a witness may not refuse so to testify without such charge or statement having first been presented to the grand jury or communicated to him. See Hale v. Henkel, 201 U. S. 43, 26 Sup. Ct. 370, 50 L. Ed. 652; Wilson v. U. S., 221 U. S. 361, 375, 31 Sup. Ct. 538, 55 L. Ed. 771, An. Cas. 1912D, 558; Hendricks v. U. S., 223 U. S. 178, 184, 32 Sup. Ct. 313, 56 L. Ed. 394; Blair v. U. S., 250 U. S. 273, 39 Sup. Ct. 468, 63 L. Ed. 979. [2] These cases are authority also for the proposition that a witness to whom immunity is extended, as in violations of the Sherman Anti-Trust Law, will not be excused from testifying because his evidence may incriminate him, and that no such privilege of immunity exists in favor of a corporation of which he is an officer or an employee. This ground of relief, therefore, is, in my opinion, not well taken. The first ground, however, is the one mainly urged and relied on. A brief statement of facts is necessary to an understanding of the questions arising thereon. On March 17, 1922, a grand jury attending on the United States District Court for the Southern District of New York returned an indictment charging some 90 defendants, including American Window Glass Company, National Window Glass Workers, Window Glass Cutters' and Flatteners' Association of America, and others, with a conspiracy to fix prices and curtail production as to certain glass products in violation of the Sherman Anti-Trust Act. This conspiracy, while alleged to have originated more than three years prior to the return of this indictment, is alleged to be a continuing conspiracy and still in existence. A demurrer to this indictment Opinion of the Court. was, some time in June, overruled. The defendants thereupon immediately moved for a bill of particulars, and on August 1 this motion was granted, requiring the bill of particulars to be served on August 20. This bill, owing to an extension of time being granted, was not served until September 16, and, when filed, the defendants objected thereto as insufficient and not in compliance with the order of the court, and moved for a supplemental bill. In the meantime the government had evidenced its intention to proceed promptly to place defendants on trial under this indictment, and the case was put on the calendar September 11, 1922, to fix a date for trial; but, because the bill of particulars had not been served, the government's motion to fix the time went over until October 9, and again at the government's request until October 16, and again on account of illness or other engagements of government's counsel until October 23. Whether or not a date for trial has since been fixed, or a sufficient bill of particulars has been served, is not disclosed by the papers submitted to me. On this hearing it is represented that some two or three months' time will be consumed in the trial. Obviously, in this situation, counsel both for the government and for the defendants either were or ought to have been industriously engaged in preparation for trial. In July, after defendants' demurrer was overruled and their motion for a bill of particulars was filed, the government began another investigation before a grand jury attending on the United States District [223] Court for the Southern District of New York. Subpoenas were issued requiring the attendance of substantially the same witnesses, and subpoenas duces tecum requiring the production of substantially the same documents, as are involved in the present hearing. Defendants moved to quash the same, on the ground that the government was not instituting this grand jury investigation in good faith, but merely for the purpose of examining witnesses in advance of and in preparation for trial, and to obtain evidence to be used on the trial, and in complying with the order for a bill of particulars. Government counsel promptly admitted this to be true, and there |