Old Monastery Co. v. United States, 5322.

Decision Date13 February 1945
Docket NumberNo. 5322.,5322.
Citation147 F.2d 905
PartiesOLD MONASTERY CO. v. UNITED STATES.
CourtU.S. Court of Appeals — Fourth Circuit

Irwin Geiger, of Washington, D. C., for appellant.

O. H. Doyle, U. S. Atty., of Greenville, S. C. (Marion Moise, Enforcement Atty., OPA, and Sp. Asst. to the U. S. Atty., of Columbia, S. C., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

The Old Monastery Company, a corporation (hereinafter called Monastery), Harold Ostrow, Walter Renken and Joseph Davis were indicted by a grand jury of the United States District Court for the Western District of South Carolina for a conspiracy to violate Section 4(a) of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix § 904(a), and Maximum Price Regulations Numbers 193 and 445. Ostrow and Davis entered each a plea of nolo contendere, the charge was dismissed as to Renken. The case proceeded to trial with a jury against Monastery alone, the jury brought in a verdict of guilty, and Monastery was duly sentenced by the District Court. Monastery has appealed.

Monastery's first point is that the indictment is defective because "it wholly omits to plead any facts showing the plan and scheme by which the alleged conspiracy was to be consummated." This point, we think, is entirely lacking in merit.

True it is that a sale, unlike many acts such as smuggling and counterfeiting, is not in itself illegal. But the indictment does not stop in alleging a mere conspiracy to effectuate a sale; it goes further in alleging a conspiracy of a number of people "that they would in the course of trade or business buy, sell and deliver packaged distilled spirits at prices in excess of the maximum price established by said Maximum Price Regulations." The indictment also sets out in detail various overt acts, with place and date, committed within the Western District of South Carolina by parties to the conspiracy. There can be no real doubt that Monastery was fully and fairly apprised by the indictment of the specific charge against it. It is well settled, too, that in conspiracy cases the details need not be described with the same particularity as is required in charging the commission of a substantive offense. Hill v. United States, 4 Cir., 42 F.2d 812; Center v. United States, 4 Cir., 96 F.2d 127; United States v. Renken, D.C., 55 F.Supp. 1, 5.

Monastery next complains of the refusal of the District Court, on the score of lack of jurisdiction, to pass upon the question of the invalidity of the Regulation involved. We think this ruling was correct.

In United States v. Chicco and Stauss, (decided August 31, 1944), 59 F.Supp. 211, District Judge Timmerman said: "Regardless of whether the exact phase of the point now under consideration was before the Supreme Court in the Yakus case, if the reasoning therein employed and rules of construction therein stated are basic and correctly reflect the views of the majority of the court, as apparently they do, it follows as an inevitable conclusion that rules or orders promulgated by the Administrator, pursuant to the provisions of the Act, are not subject to attack in the district courts of the United States, whether the case used as the occasion for the attack be civil or criminal."

See Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660. And our accused here, under such a ruling, is not without remedy. An amendment to the Emergency Price Control Act, found in Section 107 of the Stabilization Act of 1944, 50 U.S.C. A.Appendix § 924(e), provides: "Within thirty days after arraignment, or such additional time as the court may allow for good cause shown, in any criminal proceeding, and within five days after judgment in any civil or criminal proceeding, brought pursuant to section 205 involving alleged violation of any provision of any regulation or order issued under section 2 or of 206, the defendant may apply to the court in which the proceeding is pending for leave to file in the Emergency Court of Appeals a complaint against the Administrator setting forth objections to the validity of any provision which the defendant is alleged to have violated. The court in which the proceeding is pending shall grant such leave with respect to any objection which it finds is made in good faith and with respect to which it finds there is reasonable and substantial excuse for the defendant's failure to present such objection in a protest filed in accordance with section 203(a). Upon the filing of a complaint pursuant to and within thirty days from the granting of such leave, the Emergency Court of Appeals shall have jurisdiction to enjoin or set aside in whole or in part * * * or to dismiss the complaint. The court may authorize the introduction of evidence, either to the Administrator or directly to the court, in accordance with subsection (a) of this section. The provisions of subsections (b), (c), and (d) of this section shall be applicable with respect to any proceeding instituted in accordance with this subsection."

We cannot agree with Monastery's broad contention that the repeal of the Eighteenth Amendment to the Constitution of the United States utterly deprived the Congress of power to legislate in the field of intoxicating liquors. In Washington Brewers Institute v. United States, 9 Cir., 137 F.2d 964, 967, Circuit Judge Healy aptly said: "But we think the Amendment does not deprive the national government of all authority to legislate in respect of interstate commerce in intoxicants. There is nothing in the verbiage of the provision and little in its legislative history to support so broad a view. That Congress construed the Amendment more narrowly is evidenced by its prompt passage of the Federal Alcohol Administration Act, August 29, 1935, 49 Stat. 977, 27 U.S.C.A. § 201 et seq. The purpose of that Act, as stated in § 3, was `effectively to regulate interstate and foreign commerce in distilled spirits, wine, and malt beverages, to enforce the twenty-first amendment, and to protect the revenue and enforce the postal laws with respect to distilled spirits, wine and malt beverages.'"

Equally strong are the words of Circuit Judge Simons in Jatros v. Bowles, 6 Cir., 143 F.2d 453, 455: "Followed to its logical conclusion, the appellant's construction, if valid, would mean that the federal government no longer has power to punish theft of intoxicants from interstate shipments of alcoholic beverages under the authority of the so-called Car Seal Act, nor to regulate or prohibit unfair trade practices in respect to such commodities through the Federal Trade Commission, nor to regulate tariffs through orders of the Interstate Commerce Commission, nor to prohibit unfair labor practices affecting commerce in intoxicants by brewers or distillers under the authority of the National Labor Relations Act, 29 U.S.C.A., § 151 et seq., nor to prescribe minimum wages or maximum hours for employees in such enterprises under the authority of the Fair Labor Standards Act, 29 U.S.C.A., § 201 et seq. These implications demonstrate the tenuousness of the appellant's broad contentions." (Italics ours.)

And see, also, Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194; Jameson & Co. v. Morgenthau, 307 U.S. 171, 59 S.Ct. 804, 83 L.Ed. 1189; Hayes v. United States, 10 Cir., 112 F.2d 417; Schlitz Brewing Co. v. Johnson, 6 Cir., 123 F.2d 1016; United States v. Colorado Wholesale Wine & Liquors Association, D.C., 47 F.Supp. 160.

Monastery next contends that "the conspiracy here charged required participation in the consummated substantive offense of the same participants and hence the conviction for conspiracy to commit the identical substantive offense is erroneous." This principle, we think, is inapplicable to the case before us. Usually the principle is applied to situations in which the concurrence (or agreement) and the substantive crime (or consummated offense) are so intimately and so closely connected that they in reality constitute a single act. Adultery is frequently cited as probably the clearest of such cases. See 2 Wharton on Criminal Law, § 339; Clark and Marshall on the Law of Crimes, 2d Ed., § 134, p. 195. See, also, Shannon v. Commonwealth, 14 Pa. 226; Miles v. State, 58 Ala. 390; United States v. Katz, 271 U. S. 354, 46 S.Ct. 513, 70 L.Ed. 986; United States v. Zeuli, 2 Cir., 137 F.2d 845; United States v. Dietrich, C.C.Neb., 126 F. 664.

But, as Circuit Judge Parker pointed out, this principle is to be confined to very narrow limits. Lisansky v. United States, 4 Cir., 31 F.2d...

To continue reading

Request your trial
35 cases
  • Com. v. Beneficial Finance Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • November 4, 1971
    ...this factor may be considered somewhat decisive. Cf. Mininsohn v. United States, 101 F.2d 477 (3d Cir.); Old Monastery Co. v. United States, 147 F.2d 905, 908 (4th Cir.); United States v. Empire Packing Co., 174 F.2d 16, 19 (17th Cir.); People v. Canadian Fur Trappers' Corp., 248 N.Y. 159, ......
  • Goldstein v. Miller
    • United States
    • U.S. District Court — District of Maryland
    • April 25, 1980
    ...Amendment. Such challenges failed, but there did not appear to be any countervailing state legislation involved. Old Monastery Co. v. United States, 147 F.2d 905 (4th Cir.), cert. denied, 326 U.S. 734, 66 S.Ct. 44, 90 L.Ed. 437 (1945); Jatros v. Bowles, 143 F.2d 453 (6th Cir. 1944). As indi......
  • United States v. Pacheco
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 7, 1974
    ...v. United States, 9 Cir., 1968, 393 F.2d 604, 610, cert. denied, 393 U.S. 836, 89 S.Ct. 110, 21 L.Ed.2d 106; Old Monastery Co. v. United States, 4 Cir., 1945, 147 F.2d 905, 907-908, cert. denied, 326 U.S. 734, 66 S.Ct. 44, 90 L.Ed. In asking us to apply Wharton's rule to the section 1955 si......
  • United States v. Bobo
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • April 23, 1973
    ...merger, it must be viewed as having no validity. This circuit's enunciation of the rule was further limited in Old Monastery Co. v. United States, 147 F.2d 905 (4th Cir. 1945): "Usually the principle is applied to situations in which the concurrence (or agreement) and the substantive crime ......
  • Request a trial to view additional results
4 books & journal articles
  • THE CORPORATE INSANITY DEFENSE.
    • United States
    • December 22, 2020
    ...v. Sun-Diamond Growers of Cal., 138 F.3d 961, 970 (D.C. Cir. 1998), aff'd, 526 U.S. 398 (1999). (379) Old Monastery Co. v. United States, 147 F.2d 905, 908 (4th Cir. (380) New York Cent. R.R. v. White, 243 U.S. 188, 198 (1917). (381) So long as the employee is actually on the job. Corporati......
  • Two ways to think about the punishment of corporations.
    • United States
    • American Criminal Law Review Vol. 46 No. 4, September - September 2009
    • September 22, 2009
    ...32 Star. 847 (1903) (current version codified in scattered sections of 49 U.S.C.). (34.) See, e.g., Old Monastery Co. v. United States, 147 F.2d 905, 908 (4th Cir. 1945) ("The generally accepted rule is thus laid down: 'A corporation may be held criminally responsible for acts committed by ......
  • The Forlorn Hope: A Final Attempt to Storm the Fortress of Corporate Criminal Liability.
    • United States
    • The Journal of Corporation Law Vol. 47 No. 4, June 2022
    • June 22, 2022
    ...the corporation, and the corporation is subjected to criminal prosecution therefor."). (4.) See, e.g., Old Monastery Co. v. United States, 147 F.2d 905, 908 (4th Cir. 1945) ("The generally accepted rule is thus laid down: 'A corporation may be held criminally responsible for acts committed ......
  • U.S. Attys. Manual-Prosecution of Organizations
    • United States
    • Environmental crimes deskbook 2nd edition Appendices
    • June 20, 2014
    ...agent or of a party other than the corporation. 770 F.2d at 407 (internal citation omitted) (quoting Old Monastery Co. v. United States , 147 F.2d 905, 908 (4th Cir. 1945)). [new August 2008] 9-28.300 Factors to Be Considered A. General Principle: Generally, prosecutors apply the same facto......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT