Appeal
from Superior Court, Forsyth County; J. H. Clement, Judge.
The
Atlantic Ice & Coal Company, trading as the Crystal Ice & Coal Company, was convicted of undertaking to destroy and
injure the business of competitors with the intention of
attempting to fix the price of coal when the competition was
removed, and of unreasonably selling coal at a price lower
than that charged by defendant elsewhere, with the view of
injuring the business of competitors, and it appeals.
No
error.
The
defendant made numerous exceptions and assignments of error
The
defendant was indicted under the following bill of
indictment:
"The
jurors for the State, upon their oath present, that The
Atlantic Ice & Coal Company, a corporation organized and
existing in the State of Georgia and doing business in the
City of Winston-Salem, Forsyth County, on or about the 14th
day of November, 1935, with force and arms, at and in the
County aforesaid, unlawfully, wilfully did undertake to
destroy and injure the business of Consumers Coal Corp.
George Agee, Barnes Coal Co., Carroll Coal Co., Dixie Coal
Co., Drew & Tolley, Minnis Coal Co., Realty Bond Coal Co.
Service Coal Co., and I. C. Yates Fuel Co., and others, the
opponent and business rivals of the said Atlantic Ice and
Coal Company, Inc., in the State of North Carolina with the
purpose and intention of attempting to fix the price of
coal, a commodity of value, when the competition is removed
in violation of section 2563, subd. 3 of the Consolidated
Statutes, against the form of the statute in such case made
and provided and against the peace and dignity of the
State. And the jurors aforesaid, upon their oath, do
further present, That the Atlantic Ice and Coal Company, a
corporation organized and existing in the State of Georgia
and doing business in the City of Winston-Salem, Forsyth
County, on or about the 14th day of November, 1935, with
force and arms, at and in the County aforesaid, unlawfully
wifully did buy and sell within the State, through its
agent, E. W. Goodman, coal, a thing of value, which is sold
and bought in the State of North Carolina, to injure and
destroy the business of Consumers Coal Corp., George Agee,
Barnes Coal Co., Carroll Coal Co., Dixie Coal Co., Drew & Tolley, Minnis Coal Co., Realty Bond Coal Co., Service Coal
Co., and I. C. Yates Fuel Co., and others, the rivals and
opponents of Atlantic Ice and Coal Company, by lowering the
price of said coal sold, so low as to leave an unreasonable
and inadequate profit for a time with the purpose of
increasing the profit on the business when such rivals and
opponents are driven out of business or the business of
said opponents is injured in violation of section 2563,
subd. 4, of Consolidated Statutes, against the form of the
statute in such case made and provided and against the
peace and dignity of the State. And the jurors, aforesaid,
upon their oath do further present, That the Atlantic Ice
and Coal Company, a corporation organized and existing in
the State of Georgia and doing business in the City of
Winston-Salem, Forsyth County, on or about the 14th day of
November 1935, with force and arms, at and in the County
aforesaid, who deals in coal, a thing of value, within the
State of North Carolina, did unlawfully and wilfully sell,
at and in the City of Winston-Salem, a place where there is
competition, said coal at a price lower than is charged by
said Atlantic Ice and Coal Company for the same thing,
to-wit: the same or similar coal at another place, to-wit:
in the City of Charlotte, North Carolina, where there is
not good and sufficient reason, on account of
transportation or the expense of doing business, for
charging less at the one place than the other, with the
view of injuring the business of Consumers Coal Corp.,
George Agee, Barnes Coal Co., Carroll Coal Co., Dixie Coal
Co., Drew & Tolley, Minnis Coal Co., Realty Bond Coal Co.,
Service Coal Co., and I. C. Yates Fuel Co., and others,
rivals and opponents of Atlantic Ice and Coal Company,
against the form of the statute in such case made and
provided and against the peace and dignity of the State.
Gwyn,
Solicitor."
It is
stipulated by the defendant that the Atlantic Ice & Coal
Company is a corporation organized and existing under the
laws of the State of Georgia. It is further stipulated that
the Atlantic Ice & Coal Company does business in the city of
Winston-Salem under the trade-name of "Crystal Ice & Coal Company," and that the Crystal Ice & Coal Company
is not a corporation.
A
motion to quash was sustained as to the second count, on the
ground that subdivision 4 of C.S. § 2563 was so indefinite
that its enforcement would violate the due process clause of
the Federal and State Constitutions. Judgment as of nonsuit
was rendered as to the defendant Goodman, manager of the
Crystal Ice & Coal Company, and the corporate defendant was
tried only upon the first and third counts. The defendant
entered a plea of not guilty. The jury returned a verdict of
guilty upon both of those counts, and the defendant company
was fined $1,000 and costs.
and appealed to the Supreme Court. The material ones and
necessary facts will be set forth in the opinion.
In
prosecution for undertaking to destroy or injure
competitors' business with intention of fixing coal
prices thereafter, experienced local coal dealers held
qualified as experts to give their opinions that coal could
not be profitably handled at defendant's prices and that
certain additional amount should have been charged. Code
1935, § 2563, subd. 3.
Subordinate
elaborations of accurate instructions in trial for murder
with auto must be requested by accused, if desired.
W. M.
Hendren and W. P. Sandridge, of Manly, Hendren & Womble, both
of Winston-Salem, for appellant.
A. A.
F. Seawell, Atty. Gen., Harry McMullan and T. W. Bruton,
Asst. Attys. Gen., and W. T. Wilson, of Winston-Salem, for
the State.
CLARKSON
Justice.
The
defendant, at the close of the State's evidence and at
the close of all the evidence, moved to dismiss the action or
for judgment of nonsuit. C.S. § 4643. The court below denied
the motions, and in this we can see no error. Was there
sufficient evidence of defendant's guilt to be submitted
to the jury? We think so.
"On
motion to dismiss or judgment of nonsuit, the evidence is to
be taken in the light most favorable to the State, and it is
entitled to the benefit of every reasonable
intendment upon the evidence and every reasonable inference
to be drawn therefrom. 'An exception to a motion to
dismiss in a criminal action taken after the close of the
State's evidence, and renewed by defendant after the
introduction of his own evidence, does not confine the appeal
to the State's evidence alone, and a conviction will be
sustained under the second exception if there is any
sufficient evidence on the whole record of the
defendant's guilt.' State v. Earp, 196 N.C.
[164], at page 166, 145 S.E. 23. See State v.
Carlson, 171 N.C. 818, 89 S.E. 30; State v.
Sigmon, 190 N.C. 684, 130 S.E. 854. The evidence
favorable alone to the state is considered; defendant's
evidence is discarded. State v. Utley, 126 N.C. 997,
35 S.E. 428. The competency, admissibility, and sufficiency
of evidence is for the court to determine; the weight,
effect, and credibility is for the jury. State v. Utley,
supra; State v. Blackwelder, 182 N.C. 899, 109 S.E.
644." State v. Lawrence, 196 N.C. 562, 564, 146
S.E. 395, 396.
N.C.Code
1935 (Michie) § 2559, is as follows: "Every contract,
combination in the form of trust or otherwise, or conspiracy
in restraint of trade or commerce in the state of North
Carolina is hereby declared to be illegal. Every person or
corporation who shall make any such contract expressly or
shall knowingly be a party thereto by implication, or who
shall engage in any such combination or conspiracy, shall be
guilty of a misdemeanor, and upon conviction thereof such
person shall be fined or imprisoned, or both, in the
discretion of the court, whether such person entered into
such contract individually or as an agent representing a
corporation, and such corporation shall be fined in the
discretion of the court not less than one thousand
dollars."
Section
2563: "In addition to the matters and things
hereinbefore declared to be illegal, the following acts are
declared to be unlawful, that is, for any person, firm
corporation, or association directly or indirectly to do or
to have any contract, express or knowingly implied, to do any
of the acts or things specified in any of the subsections of
his section. * * * 3. To willfully destroy or injure, or
undertake to destroy or injure, the business of any opponent
or business rival in the state of North Carolina with the
purpose or intention of attempting to fix the price of
anything of value when the competition is removed. 4. Who
directly or indirectly buys or sells within the state,
through himself or itself, or through any agent of any kind
or as agent or principal, or together with or through any
allied, subsidiary or dependent person, firm, corporation or
association, any article or thing of value which is sold or
brought in the state to injure or destroy or undertake to
injure or destroy the business of any rival or opponent, by
lowering the price of any article or thing of value sold, so
low, or by raising the price of any article or thing of value
brought, so high as to leave an unreasonable or inadequate
profit for a time, with the purpose of increasing the profit
on the business when such rival or opponent is driven out of
business, or his or its business is injured. 5. Who deals in
any thing of value within the state of North Carolina, to...
