Morgan v. United States, 11142.

• Decision Date: 07 June 1945
• Docket Number: No. 11142.,11142.
• Citation: 149 F.2d 185
• Parties: MORGAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

149 F.2d 185 (1945)

MORGAN v. UNITED STATES.

No. 11142.

Circuit Court of Appeals, Fifth Circuit.

May 11, 1945.

Rehearing Denied June 7, 1945.

S. W. Plauche, Sr., of Lake Charles, La., for appellant.

Malcolm E. Lafargue, U. S. Atty., and Albert E. Bryson, Asst. U. S. Atty., both of Shreveport, La., for appellee.

Before SIBLEY, HUTCHESON, and LEE, Circuit Judges.

LEE, Circuit Judge.

Appellant, Samuel R. Morgan, was convicted along with two others, Riley Johnson and John D. Warner,¹ under a bill of information charging defendants with selling ice in Lake Charles, Louisiana, during the period from May 25 to July 7, 1944, at prices higher than the maximum established therefor by maximum price regulation No. 154, promulgated pursuant to the Emergency Price Control Act of 1942, 50 U.S.C.A. Appendix § 901 et seq., by the Office of Price Administration. The ceiling price was thus fixed at the highest price at which the seller sold and delivered ice during the month of March, 1942.² The bill of information contained fifty-four counts, (appellant was convicted on fifty-two of them), each setting forth a specific sale made in violation of the price regulation; and all counts were identical except in respect to the date, purchaser, amount, and price charged.

Appellant was sentenced to six months imprisonment on the first five counts, and imposition of sentence was suspended on the remaining counts. From the sentence thus imposed he prosecutes this appeal. Here he asks reversal on the grounds that the bill of information did not admit of proof that there was a conspiracy, certain evidence was improperly admitted, and the evidence was insufficient to justify submitting the case to the jury.

In March and May of 1942, the Pure Ice & Cold Storage, Inc., and the Service Ice Company were the only dealers in ice in Lake Charles, Louisiana. In June of 1942 each filed with the local War Price and Rationing Board a price list showing the ceiling prices charged for ice during March of 1942. Under maximum price regulation No. 154, the price lists thus filed (they were identical) fixed the ceiling prices that could be charged for ice by these companies and by any seller of ice in that territory who began the business of selling ice after March of 1942. See paragraph (b), Section 1393.9, set out in footnote 2.

The capital stock of Pure Ice & Cold Storage, Inc., was virtually wholly owned by appellant's wife, and appellant was in active charge of its affairs during the summer and fall of 1943. During 1943 it was enjoined, in proceedings filed against it by the Price Administrator, from selling ice in violation of the maximum price regulation. In December of that year its affairs were placed under the management of Riley Johnson, one of the defendants, who until that date had served it in the capacity of accountant. Appellant, in the latter half of December, 1943, took personal charge of the affairs of the Morgan Ice Company, a Texas corporation that owned some ten manufacturing units located at various points in Texas, with headquarters in Beaumont, Texas, and the shares of stock of which were held by the members of his family.

John D. Warner, named as co-defendant with appellant and Johnson, was in the employ of Morgan Ice Company until the late spring of 1944 at one of its units in Longview, Texas. On or about May 25, 1944, he went to Lake Charles and under the trade name "Peoples Ice Company" opened a retail ice business near the Lake Charles plant of the Pure Ice & Cold Storage, Inc. Thereafter the Pure Ice & Cold Storage, Inc., cut off all sales of ice except to large customers and delivered its surplus ice to Warner, referring its retail customers to Warner for ice requirements. It was conclusively established that Warner disposed of the ice thus received at a price in excess of the ceiling.

The Government contended that appellant actually controlled the affairs of the Pure Ice & Cold Storage, Inc., as he did those of Morgan Ice Company; that Johnson was an employee of the former company and that Warner was an employee of the latter company; that Warner was brought to Lake Charles by appellant and set up in business as the Peoples Ice Company merely as a front for the Pure Ice & Cold Storage, Inc., in order that the latter company might sell ice in excess of the prices fixed by the maximum price regulation; and that this procedure was resorted to by appellant in order to get around the injunction against the Pure Ice & Cold Storage, Inc., obtained by the Price Administrator during the year 1943. Defendants, including the appellant, on the other hand asserted that Warner was solely interested in the business carried on by him and that he obtained ice from the Pure Ice & Cold Storage, Inc., under an oral contract with Johnson, its manager, pursuant to which all surplus ice of that company was sold to him.

After Warner began selling and retailing Ice under the trade name "Peoples Ice Company," Johnson on several occasions referred customers of the Pure Ice & Cold Storage, Inc., to appellant in connection with commitments for the sale of ice. These persons visited appellant in his office in Beaumont, Texas. One of them was introduced to Warner by appellant in appellant's office in Beaumont, and Warner there arranged to sell him ice at prices above the ceiling. Another of them testified that appellant told him in Beaumont that due to conditions, "the rate of pay he had to pay men, he couldn't afford to sell ice for 25 cents"; that the price would be 35 cents per c. w. t.; that he (the witness) there made a deal with appellant, and that appellant wrote out the deal to Johnson.

Appellant urges that, in the absence of allegation of conspiracy or other similar arrangement by appellant and the other defendants in the bill of information, the lower court erred in permitting the Government to introduce evidence respecting sales of ice by...