Commonwealth v. Dyer

• Decision Date: 30 December 1922
• Citation: 243 Mass. 472
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. FREDERICK M. DYER & others.

243 Mass. 472

COMMONWEALTH v. FREDERICK M. DYER & others.

Supreme Judicial Court of Massachusetts, Suffolk.

December 30, 1922

November 8, 9, 10 1921.

Present: RUGG, C.

J., BRALEY, DE COURCY, CROSBY, & CARROLL, JJ.

Conspiracy. Monopoly.

Food. Pleading Criminal, Indictment, Motion to quash, Motion to expunge. Practice, Criminal, Jury, Verdict, Exceptions. Jury and Jurors. Verdict. Evidence, Competency, Relevancy and materiality, Privileged communications, Admission. Attorney and Client.

Conspiracy as a criminal offence is established when the object of the combination is either a crime, or, if not a crime, is unlawful, or when the means contemplated are either criminal or, if not criminal, are illegal, provided that, where no crime is contemplated either as the end or the means, the illegal but non-crimidal element involves prejudice to the general welfare or oppression of the individual of sufficient gravity to be injurious to the public interest. An indictment charged that the defendants between January 1, 1916, and

February 3, 1919 when, by reason of conditions created by the World War, there was general scarcity of food-stuffs and of steam trawlers and other vessels available for the catching of fish, engaged in a conspiracy to create a monopoly in fresh fish, to fix, regulate, control, and to enhance exorbitantly and unreasonably the price of fresh fish with intent "to injure, oppress, impoverish, cheat and defraud . . . divers persons and corporations . . . and the public in general." The means by which, it was alleged, the defendants intended to carry out their plans were (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 the establishment thus 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; (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 non-assessable 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 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, and (12) by coercing others by threats and intimidation to join in the conspiracy and restraining their trade. Held, that the indictment properly charged a criminal conspiracy to do an unlawful act by means which in some particulars were unlawful and in some were criminal under our law.

In the modern and wider sense monopoly denotes a combination, organization or entity so extensive and unified that its tendency is to suppress competition, to acquire a dominance in the market and to secure the power to control prices to the public harm with respect to any commodity which people are under a practical compulsion to buy. Per RUGG, C.J.

By the common law monopolies were unlawful because of their restriction upon individual freedom of contract and their injury to the public.

Following Standard Oil Co. v. United States, 221 U.S. 1.

Private monopoly of an essential article of food in time of war is unlawful in this Commonwealth.

It was stated by RUGG, C.J., that it should be noted, as an exception to any generalization, that monopolies in public utilities may be granted by the General Court in the public interests, subject to appropriate regulation for the general welfare.

Even if monopoly alone and without more at common law and under St. 1908, c. 454, Section 1, be not considered a crime, it is illegal, void and against public policy, and a combination for the purpose of establishing a monopoly in an essential article of food and of raising its price excessively and unreasonably in time of war is highly inimical to the public welfare and is indictable as a conspiracy.

One of the means for compassing the end of the combination described in the above indictment was to be the holding of fresh fish in cold storage for a longer period than twelve months without the consent of designated State

officers. Held, that such conduct was a crime under St.

1912, c. 652

(see now G.L.c. 94, Sections 69-73). Sham bidding and sham selling of fish at auction on the fish exchange in

Boston, alleged in the indictment above described to have been one of the means for attaining the end of the combination, was a crime at common law.

Another means adopted for carrying out the above described conspiracy, false representations as to the scarcity of fresh fish, constituted an unlawful act of such nature that at the least a contract made in reliance upon such false representations might have been avoided,

Averments in the indictment above described as to the fraudulent issuance of stock in the Maine corporation organized as one of the means of carrying out the conspiracy and as to the fraudulent payment of dividends on such stock set forth means at least unlawful in the sense of being contrary to good faith and commercial honesty.

An allegation in the indictment above described that, as one of the means for carrying out the conspiracy, certificates of stock in a Maine corporation were fraudulently issued and sold to the public in this

Commonwealth as fully paid and legal was sufficient as matter of criminal pleading.

In an indictment for criminal conspiracy, a general description of illegal means employed by the defendants by terms of recognized meaning in law is sufficient without the particularity which might be necessary in an indictment for the substantive crime.

To indict one for engaging in a conspiracy seeking to acquire a monopoly and thereby to enhance unreasonably the price of a given article is to charge him with a specific offence in plain words and such an indictment is not open to the objection that it was too vague and indefinite to constitute a proper criminal charge.

The facts, that some of the means alleged to have been used by the defendants in the indictment above described had no taint of illegality and that others were not set out with the detail which would be essential if they constituted the main crime, did not invalidate the indictment.

There was no fatal defect in the indictment above described by reason of duplicity or misjoinder. An indictment charging several defendants with the offences described in

St. 1912, c.

651, and in the words used in that statute, is sufficient in matter of form.

Defendants may be charged, in a single indictment containing several counts, with divers and distinct offences, whether felonies or misdemeanors, if the offences are of a kindred nature and subject the defendants to punishments of the same general character.

Two counts charging a criminal conspiracy at common law to promote by unlawful means a monopoly in fish inimical to the public welfare, and fourteen counts charging violations of G.L.c. 93, Sections 8-12, may be joined in a single indictment against thirty individuals.

The indictment above described named three persons in several counts as co conspirators with the defendants with an averment that no indictment was found against these three for the reason that they "testified and produced evidence before a committee of the General Court of

Massachusetts upon a subject referred to said committee relating to matters and things included within this presentment." The defendants moved that the above statement be expunged and that because of it the indictment be quashed. The motions were denied. In his charge the judge instructed the jury that the statement was unnecessary and superfluous and that it could be disregarded. Held, that

(1) There was no legal harm to the defendants in naming all the conspirators and at the same time stating why accusation was not made against those omitted from the indictment;

(2) Although the statement did not set forth a substantive part of the crime and well might have been omitted, the defendants' motions were denied rightly, and their substantive rights were protected by the charge.

An entire panel of traverse jurors, who had been summoned by a special writ of venire facias for the trial of an indictment for criminal conspiracy at the "Third Session" of the Superior Court for criminal business in the county of Suffolk, was discharged. The trial judge then directed jurors to be called from two other sessions of the Superior Court then being held for criminal business in the court house, for the same county and from those jurors five were chosen. Thereafter the remaining seven jurors were secured from jurors then in attendance at several civil sessions of the Superior Court being held for the same county. Held, that the proceedings following the discharge of the panel first summoned were regular under G.L.c. 212, Sections 12, 14; c. 234, Section 27.

The sitting of the Superior Court each month for Suffolk County for criminal...