Commonwealth v. Dyer

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: RUGG
• Citation: 243 Mass. 472,138 N.E. 296
• Decision Date: 02 January 1923
• Parties: COMMONWEALTH v. DYER et al.

243 Mass. 472
138 N.E. 296

COMMONWEALTH
v.
DYER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 2, 1923.

Exceptions from Superior Criminal Court, Suffolk County; George A. Sanderson, Judge.

Frederick M. Dyer, otherwise known as F. Munroe Dyer, and others were convicted of offenses, and they bring exceptions, and appeal from orders overruling motions to quash and to expunge certain allegations from the indictment. Sentences set aside, and verdicts set aside in part, and in part permitted to stand.

The excepting defendants were indicted with certain other persons, acquitted by the jury, in 2 counts for common-law conspiracy to create a monopoly, enhance the price of fresh fish, and cheat and defraud the public, and in 14 other counts, with violations of St. 1912, c. 651. Before pleading to the indictment they severally filed their motions to quash, and after pleading again severally filed similar motions. The motions were overruled, and defendants excepted. Defendants prior to arraignment filed a motion to expunge certain portions of the indictment, which was overruled, and defendants excepted. After arraignment, defendants filed a motion for specifications, and the commonwealth filed an alleged bill of particulars, and defendants seasonably excepted to the court's refusal to require the filing of further or additional particulars. Defendants also excepted to certain proceedings described in the opinion upon the impaneling of the jury. A large number of exceptions were taken to rulings on the admissibility of evidence, to the denial of motions for directed verdicts, to the failure to give requested instructions, and to portions of the charge as given. Upon the return of the jury with the announcement that they had agreed upon a verdict, the foreman was asked by the clerk, separately as to each defendant, whether he was found guilty or not guilty as to counts 1 and 2, and whether he was found guilty or not guilty as to counts 3 to 16. Thereupon the jury was discharged, and the jurymen left their seats, shook hands with various counsel, and most of them had gone into the corridor, and some into a private elevator, which they had been directed to use, when they were recalled, and the clerk then read the verdict as recorded, and called upon them to affirm it. While this was being done, defendants' counsel announced that they desired to enter their objection to the affirmation of the verdict ‘at this time, on the ground that the jury had already been discharged and had separated.’ The court made no ruling on this objection.

A witness for the commonwealth testified that he was a stenographer and examiner in the case of United States v. New England Fish Exchange and others, which was an equity case in the United States District Court, and, as examiner, took the testimony thereon, and that the defendant F. Munroe Dyer was present and testified. The commonwealth was then permitted to prove by him, over objection and exception, testimony given by Dyer in that case, as mentioned in the part of the opinion numbered 21(h). The witness Hallett, mentioned in the same subdivision of the opinion, was the president of a bank that made a loan to Dyer in connection with the acquisition by the Bay State Fishing Company of Maine of the property of the Bay State Fishing Company of Massachusetts. Hallett had received from Dyer, without consideration, common stock in the Maine corporation, on which he received dividends, and has also made personal loans to Dyer with other stock as collateral. Hallett was one of those charged in the indictment to be members of the combination, but not indicted, because he had testified before a committee of the general court. There was evidence showing or tending to show that the ‘Bay State Fisherman,’ mentioned in subdivision 21(i) of the opinion, was a ‘house organ’ of the Bay State Fishing Company of Maine, and that the issues introduced in evidence, though ordered by one Duffy, were delivered to such company. An advertisement appearing in an issue introduced in evidence and purporting to be that of such company referred to that company as ‘the largest producers of fresh fish in the United States,’ and under the head of ‘Distributing Branches' named a number of concerns in which different defendants were interested. The witness Beardsley, mentioned in subdivision 21(j) of the opinion, had been manager of the New England Fish Exchange, and from its books had prepared statistics on the fishing industries for the United States government and also for the General Court of Massachusetts, and from information derived from such books, was permitted to give statistics concerning the number of pounds of fish landed at the Boston fish pier in 1916, the concerns handling it, and the amount handled by different concerns, and other statistics concerning the fishing business.

243 Mass. 481

[138 N.E. 301]

J. Weston Allen, Atty. Gen. (Henry C. Attwill, Abraham C. Webber, and Charles W. Mulcahy, all of Boston, of counsel), for the Commonwealth.

Henry F. Hurlburt and Damon E. Hall, both of Boston (John H. Devine and Arthur P. Gay, both of Boston, of counsel), for defendants Curran and Atwood.

RUGG, C. J.

The first two counts of this indictment are framed on the common law. Numerous defendants therein are charged with conspiracy to create a monopoly in fresh fish, to fix, regulate, control, and to enhance exorbitantly and unreasonably the price of fresh fish, and thus to cheat and defraud the public. By way of inducement it is alleged that the principal place within this commonwealth and New England where fresh fish was bought and sold was the exchange maintained on the fish pier in Boston by the New England Fish Exchange, where the privilege of buying and bidding was restricted to the stockholders and to a limited number of persons licensed by the exchange, and that the prices there prevailing controlled the prices throughout New England, and that before the acts of the defendants there was free competition on the exchange, of which they were stockholders, between the persons, firms and corporations subsequently absorbed in the Bay State Fishing Company, a corporation organized by the defendants under the laws of Maine, and that by reason of conditions[243 Mass. 482]created by the great war there was general scarcity of foodstuffs and of steam trawlers and other vessels available for catching of fish, and that fresh fish was a perishable article of food of prime necessity, merchantable as such for a brief period only after being caught, and indispensable to the public at fair and reasonable prices. The intent of the defendants in engaging in the conspiracy is alleged to be ‘to injure, oppress, impoverish, cheat and defraud * * * divers persons and corporations * * * and the public in general.’ The time of the conspiracy as fixed by specifications is between January 1, 1916, and February 3, 1919. The means by which it is in these two counts alleged that the defendants intended to carry out their plan are: (1) By the acquisition and by securing control of the assets, property and good will of divers corporations, partnerships and individuals and of other agencies theretofore engaged in catching, selling, storing and distributing fresh fish in Boston and thus the establishment of a monopoly of the fresh fish business; (2) by withholding fish from sale and controlling the sale thereof; (3) by keeping fish in storage in violation of the cold storage laws of the commonwealth; (4) by sham bidding and sham selling as to fresh fish at auction on the fish exchange in Boston; (5) by causing to be published false quotations of sales of fresh fish; (6) by false representations as to scarcity of fresh fish;

[138 N.E. 302]

(7) by causing to be unlawfully and fraudulently issued within this commonwealth by officers, agents and servants of a foreign corporation certificates of stock therein purporting and represented thereon to be fully paid and nonassessable shares of such stock but in truth issued for property conveyed at the behest of the conspirators to the corporation at prices grossly in excess of their value; (8) by causing dividends to be paid on fraudulently issued stock of such corporation; (9) by misrepresenting the value of property conveyed at the instance of the de-defendants to such corporation for issuance of stock; (10) by misrepresenting to the public that such stock was issued lawfully and for the fair value of property conveyed to the corporation therefor; (11) by eliminating competition in the fish business; (12) by coercing others by threats and intimidation to join in the conspiracy and restraining their trade.

The remaining 14 counts of the indictment all are founded on St. 1912, c. 651, and charge violation of its terms. That statute [243 Mass. 483]denounces under pain of severe penalty a combination of persons, firms, associations or corporations ‘for the purpose of destroying the trade or business' of another ‘engaged in selling goods or commodities and of creating a monopoly within this commonwealth.’ Section 2. Each of these 14 counts charges the defendants with combining in the fish business for the purpose of destroying the trade and business of named persons, firms or corporations engaged in selling fresh fish and of creating a monopoly in fresh fish within the commonwealth.

The defendants filed motions to quash the indictment and the several counts thereof, assigning a large number of grounds.

1. The principles by which to determine the elements essential to conspiracy as a common-law crime are settled in this commonwealth. The subject was discussed at large by Chief Justice Shaw in Commonwealth v. Hunt, 4 Metc. 111, where at page 123 (38 Am. Dec. 346), it was said:

‘A conspiracy must be a combination of two or more persons by some concerted action to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful by criminal or...