Mercer v. United States, 4725.

• Decision Date: 26 August 1932
• Docket Number: No. 4725.,4725.
• Citation: 61 F.2d 97
• Parties: MERCER v. UNITED STATES
• Court: U.S. Court of Appeals — Third Circuit

61 F.2d 97 (1932)

MERCER v. UNITED STATES

No. 4725.

Circuit Court of Appeals, Third Circuit.

August 26, 1932.

J. Franklin Nusbaum and Benjamin M. Golder, both of Philadelphia, Pa., for appellant.

Phillip Forman, U. S. Atty., of Trenton, N. J., John Lord O'Brian, Asst. Atty. Gen., and Israel B. Oseas, of New York City, and William G. Davis and James Lawrence Fly, Sp. Assts. to Atty. Gen.

Before WOOLLEY and DAVIS, Circuit Judges, and JOHNSON, District Judge.

JOHNSON, District Judge.

Michael J. Duffy, Harry R. Mercer, and another, unknown, were indicted on the charge of conspiracy to restrain and monopolize interstate commerce in motortrucking between Philadelphia and New York in violation of the Sherman Anti-Trust Act, 26 Stat. 209, §§ 1, 2 (15 USCA §§ 1, 2). The indictment contains two counts; the first charging the defendants with conspiracy to restrain interstate commerce, and the second charging the defendants with conspiracy to monopolize interstate commerce. Before the trial Michael J. Duffy was killed. Defendant Mercer was tried before a court and jury, and was found guilty on both counts. At the beginning of the trial, the defendant Mercer filed a demurrer to the indictment, which was overruled by the court. When the evidence of the government was completed, counsel for the defendant entered a motion for the direction of a verdict of "not guilty," which was denied by the court. After the verdict, counsel for the defendant filed a motion for a new trial and a motion in arrest of judgment, which were overruled. After the verdict, Mercer was sentenced to pay a fine of $250 and undergo imprisonment for a period of three months. From this judgment, an appeal was taken to this court.

The defendant has assigned five errors: First, the overruling of the demurrer to the indictment; secondly, the denying of defendant's motion for a directed verdict; thirdly, the denying of defendant's motion in arrest of judgment; fourthly, the entry of judgment against the defendant; and, fifthly, that the judgment of the court was contrary to law.

From these assignments of error, two main questions arise: First, the sufficiency of the indictment, and, secondly, the sufficiency of the evidence. The first count of the indictment charges that "beginning at, to-wit, some time prior to March 24, 1931 (the exact time being to the grand jurors unknown) and continuously thereafter until to-wit, the date of the filing of this indictment, Michael J. Duffy, Harry R. Mercer, John Doe, Jacob Saul, Joseph Saul and Harry Miller, together with divers other persons to the grand jurors unknown (said defendants and other persons whether named or unknown being hereafter collectively described as conspirators) well knowing all matters of fact in this indictment set forth, within the State and District of New Jersey, entered into and engaged in a conspiracy in restraint of the trade and commerce described in paragraphs 1 and 2 of this indictment, which said conspiracy has among others the following objects:

"To cause the trucking companies aforesaid to cease to compete with each other in interstate commerce as aforesaid;

"To cause the trucking companies aforesaid to cease to compete with each other in the rates charged by them for their services in transporting goods, wares and merchandise in interstate commerce as aforesaid;

"To cause said trucking companies by agreement to increase the rates now charged by them for such transportation and to adopt by agreement arbitrary, unreasonable and non-competitive rates;

"To coerce, by violence and threats of violence, trucking companies to become parties to such agreement and to abide by the rates so fixed;

"To coerce shippers, by destruction and delay of merchandise offered for shipment, to avail themselves of the services of trucking companies...