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constituting the offense, and the jury must determine under the instructions of the court, whether the facts shown in evidence, constitute an undue restraint of trade, or an attempt to monopolize.

Prosecutions under this act are therefore sharply distin guished from those under the Interstate Commerce Act as amended. Under the latter facts constituting criminal violations of the act are clearly and specifically stated. The railroad is bound to publish its rates, and any failure so to do, or any deviation therefrom is penalized. We have a directly contrary condition in criminal prosecutions under the Anti-Trust Act. (As to criminal provisions of act see address of Hon. W. B. Hornblower before American Bar Association, 1911.)

The sufficiency of an indictment under the Anti-Trust Act has not yet (1911), been definitely passed upon by the supreme court. The question was argued in U. S. v. Kissel, 218 U. S. 601, 54 L. Ed. p. 1168 (December, 1910), wherein the United States had taken out a writ of error from the judgment of the circuit court, S. D. of N. Y., sustaining a plea in bar of the statute of limitations to an indictment, charging a conspiracy to restrain trade and monopolize; but the court confined its opinion to the single question of the sufficiency of the plea. See infra, § 457.

The sufficiency of allegations in indictments under the act is also considered in U. S. v. McAndrews & Forbes Company, et al., 149 Fed. 823 (1906), S. D. of N. Y., where the court held the allegations of the indictment sufficient, and in U. S. v. Patten, 187 Fed. 664, S. D. of N. Y. (March, 1911), the "Cotton Corner" Case. See infra, § 461. See also U. S. v. Maurer, 188 Fed. 127 (Powder Trust Case).

§ 456. The Chicago Meat Trust indictment.-In U. S. v, Smith (May, 1911), the circuit court, N. D. of Illinois, considered the sufficiency of indictments in overruling demurrers filed in the so-called meat trust cases. The contention was made that the penal provisions of the act were too indefinite and uncertain in defining the elements or constituents of the crime to justify indictments thereunder. The court said that the act was primarily a criminal statute. The equitable remedies provided in the act to be enforced by the equity courts, were made dependent upon the criminal sections; and unless

an act which was sought to be enjoined under section 4 was a crime it could not be enjoined, because it was only that which was made a crime by the statute which was subject to the equity jurisdiction. The court, therefore, concluded that the supreme court, in sustaining the validity of the act, had in effect determined that the offenses therein enumerated were defined with sufficient accuracy. The court said that the facts charged in the indictment were substantially the same as those set out in the bill in equity, which had been filed against the same defendants under section 4 of the act, and which had been held sufficient by the circuit court and the supreme court. See Swift & Co. v. U. S., 196 U. S. 375, supra, where the court said, "The scheme as a whole seems to us within reach of the law;" and the court concluded in the light of that decision and upon principle the indictment in the case stated facts which amounted in law to a violation of the act. The indictment in this case set out with particularity the control by the defendants of three extensive packing concerns doing an interstate business and that they had combined together in a plan to eliminate competition between such concerns by agreement not to compete against each other for live stock, but to bid exactly the same amount for like grades, and by fixing a universal selling price to be charged by each, and apportioning among themselves the total business done according to the financial interest of each. The court held that this was sufficient to enable the accused to make their defense.

§ 457. Criminal conspiracy under the act-The overt act. Both the first and second sections of the act penalize a combination or conspiracy, and a conspiracy to restrain or monopolize trade is therefore a criminal offense under the act. A conspiracy in its legal sense is a misdemeanor at common law and has been defined as an agreement by two or more persons to do an illegal act or to do a legal act by illegal methods. Under 5440 U. S. R. S., see supra, § 94, the parties to a conspiracy, to commit any offense against the United States, or to defraud the United States, are liable to punishment, provided one or more of the parties to the conspiracy do some overt act in furtherance of the conspiracy. Neither in section one in penalizing a conspiracy to restrain trade or in section two as to a conspiracy to monopolize trade, is there any requirement of an

overt act to complete the offense, though under the conspiracy statute, Sec. 5440, an overt act in furtherance of the conspiracy is essential.

It was held in U. S. v. Kissel, 173 Fed. 823 (1909), and in U. S. v. Patten, supra, that the Anti-Trust Act is independent of the earlier conspiracy enactment, and that there was no warrant for reading its limitations into this separate and distinct enactment. It followed that counts containing no averments of overt acts were not for that reason insufficient. In the Kissel Case (infra), the supreme court considered the overt acts, set out in the indictment, but did not pass upon the necessity of their averments as essential to the completion of the offense.

§ 458. Limitations of prosecutions for conspiracy.-In the Kissel case it was held by the district court that a conspiracy in restraint of trade was nothing but a contract or agreement between two or more persons in restraint of trade, and that the three year statute of limitations began to run from the time when the agreement was complete, and the demurrer to the special plea involved was therefore overruled. The supreme court on writ of error (December, 1910), 218 U. S. 601, 54 L. Ed. 1168, reversed this ruling and held that the indictment charged a continuing conspiracy, and although a contract was instantaneous, a conspiracy was a criminal partnership and might endure for years, and a conspiracy in restraint of trade was different from and more than a contract in restraint of trade. The court said that while the special plea was bad, all defenses, including the defense that the conspiracy was ended by success, abandonment or otherwise more than three years before the indictment, would remain open for consideration under the general issue.

8 459. Indictments for conspiracy-Sufficiency.-It was held in U. S. v. McAndrews & Forbes Co., S. D. of New York, 149 Fed. 823 (1906), that it was not necessary that the combination should involve a total suppression of trade or a complete monopoly, but that it was sufficient that the necessary operation of the combination tended to restrain interstate commerce and to deprive the public of the benefit of free competition. It was not necessary to set out any precise time when the purpose was formed, or the plan of the conspiracy was first de

vised. It was sufficient to allege the time when the several cases relied on to establish the offense were done.

The court said that the term "conspiracy" in the Anti-Trust law was to be interpreted independently of the preceding words, and must depend upon the concerted action of two or more persons to accomplish an unlawful result by any means, or a lawful result by unlawful means. The terms were wide enough to cover not only the suppression of the trade of competitors by wrongful means, but every restraint of interstate trade, if it can be accomplished by a predetermined and conceded action of two or more individuals. The indictment in this case was held sufficient. See also U. S. v. Va. & Car. Chem. Co., 163 Fed. 66, (D. Tenn. 1908) where the court held the indictment sufficient, but ordered it quashed because of the presence of unauthorized persons before the grand jury.

§ 460. Corporations indictable for criminal conspiracy under the act.-In U. S. v. McAndrews & Forbes Co., supra, the court held there was no improper joinder in an indictment of a corporation and the individual officers of a corporation as principal conspirators. The court said that there was nothing inherently impossible in the corporation's doing one thing and the individuals' another at or about the same time, which things were utterly different; yet all, when dovetailed together, go to make up the joint product labeled by the act combination, conspiracy, and monopoly. It was conceivable that the evidence might show that the individual defendants were not pre-agents but acted under a species of corporate coercion; but this question could not be determined on demurrer. The court said that the dogma that a corporation could not be indicted for an offense which derived its criminality of evil intention was but the remnant of a theory always fanciful and in process of abandonment. It was as easy and logical to ascribe to a corporation an evil mind as it was to impute it with a sense of contractual application. The demurrers to the indictment were, therefore, overruled.

§ 461. Indictability of conspiracy to run a corner.—In U. S. v. Patten, et al., 187 Fed. 664, C. C. S. D. of N. Y. (March, 1911), the court sustained a demurrer to those counts

of the indictment for alleged conspiracy in violation of the Anti-Trust Act which was charged to consist in the running of a corner in cotton. The court said that while a corner was illegal because it was a combination which arbitrarily controlled the prices of commodity, it could not be called a combination in restraint of competition since the going up of price incident to the creation of the corner necessarily increased competition; and as no monopoly existed when individuals, each acting for himself, owned large quantitites of commodities, the indictment was fatally defective as alleging only a scheme to demand monopolistic prices as the result of individual as distinguished from collective power. The indictment in this case was for a conspiracy to monopolize, and such an indictment was insufficient where it failed to show a conspiracy, if successfully carried out, would have resulted in a monopoly.

This case has been taken by writ of error by the United States to the supreme court, so that it may be definitely determined whether the attempted artificial control of a market in "running a corner" is not an "attempt to monopolize" under the later decisions construing the act.

§ 462. The immunity of witnesses in criminal prosecutions. As to the general subject of immunity of witnesses and self incrimination in prosecution under this act and under the Interstate Commerce Act, see supra, § 12; infra, § 488. It was held in U. S. v. Swift, N. D. of Illinois 186 Fed. 1002 (1911), that the Immunity Act Feb. 11, 1893, which was made applicable by the Act of Feb. 14, 1903 to the giving of testimony before the department of commerce and labor acted as a general amnesty for offenses arising out of the transaction to which the testimony alleged, but it was not a shield against prosecution for offenses committed after the testimony is given of the testimony furnished. This ruling was applied to the case of a conspiracy, and it was held that the acquittal of the defendants on 1905 for the conspiracy on the ground that they had been made immune from prosecution by reason of testimony given before the commissioner of corporations did not extend to subsequent prosecutions for continuing the same offense thereafter, nor did it obliterate the facts testified to, which if legally important and relevant might be shown in a subsequent prosecution.

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