State v. The Glenn Lumber Company
| Decision Date | 05 November 1910 |
| Docket Number | 17,085 |
| Citation | 111 P. 484,83 Kan. 399 |
| Parties | THE STATE OF KANSAS, Appellant, v. THE GLENN LUMBER COMPANY, Appellee |
| Court | Kansas Supreme Court |
Decided July, 1910.
Appeal from Labette district court.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
1. CRIMINAL LAW--Appeal by the State--Order Quashing Part of an Information. The state may appeal from an order quashing one count of an information, although another count charging a different act is held sufficient or is not attacked.
2. CRIMINAL LAW--Appeal by the State--Order Requiring Separate Statements of Matter Pleaded in One Count. Under the statute (Crim. Code, § 283) authorizing an appeal by the state in a criminal action "on quashing or setting aside an . . . information" an appeal may be had from an order requiring matter pleaded in one count to be separately stated in different counts.
3. CRIMINAL LAW--Right of Appeal--Rendition of Final Judgment. Where a motion to quash an information is sustained, and the state refuses to amend, the fact that no formal final judgment is entered discharging the defendant is not ground for dismissing the appeal.
4. INFORMATION--Statutory Offense--Agreement to Prevent Competition. In a prosecution under the statute (Gen Stat. 1909, § 5185) forbidding agreements to prevent competition in the sale of articles, or to control their price, it is not necessary that the information describe the nature of the agreement complained of, further than to characterize it in the language of the statute as intended and adapted to accomplish certain results.
5. STATUTES--Repeal by Implication--Antitrust Law. The antitrust law of 1889 (Gen. Stat. 1909, §§ 5185-5193) is not repealed by that of 1897 (Gen. Stat. 1909, §§ 5142-5152.)
6. INFORMATION--Duplicity. An information is not bad for duplicity which charges in one count acts which would constitute a misdemeanor under either of the antitrust laws referred to.
Fred S. Jackson, attorney-general, John Marshall, assistant attorney-general, Charles D. Shukers, special assistant attorney-general, and M. E. Williams, county attorney, for the appellant.
Thurmond & Farrar, and Glasse & Burton, for the appellee.
An information was filed against the Glenn Lumber Company, a corporation, charging it in ten separate counts with violating the antitrust laws. The defendant filed a motion to quash the first eight, and to require the state to set out in separate counts the different offenses charged in each of the remaining two. The court sustained both motions and made an order giving the plaintiff thirty days to amend the information, if so desired, and the defendant twenty days in which to plead to such amended information. The state declined to amend, and appeals from the rulings upon the motions.
The defendant challenges the right of the plaintiff to be heard, upon the grounds that the state can not appeal from an order quashing a part of the counts of an information or from the sustaining of a motion for the separate statement of several offenses, and that if such an appeal lies at all it can be brought only after a final judgment for the defendant, which was not formally rendered in this case.
It has been held in other jurisdictions that so long as any count of an information is held good the state can not appeal from an order quashing the others. (The State v. Stegman, 90 Mo. 486, 2 S.W. 798; The State v. Thompson, 41 Tex. 523.) But under the practice in this state the prosecution of several distinct offenses at the same time by means of an information containing several counts is a mere matter of convenience. For many purposes the proceeding under each count may be regarded as in effect a separate action. A defendant may procure a reversal as to a part of the counts on which he has been convicted, although the judgment is affirmed as to the rest. (The State v. Guettler, 34 Kan. 582, 9 P. 200.) We see no reason why, where one count of an information has been quashed, a review of that ruling may not be had, even although the case proceeds to trial upon other counts charging other violations of the law. Where several counts are employed merely as different methods of describing the same illegal act the rule may be different.
The statute does not in terms authorize an appeal from an order requiring the state to amend an information by making two or more counts out of matter contained in one. But such an order, when the state refuses compliance, necessarily ends the prosecution and in effect sets aside the information. It is therefore appealable under the statute authorizing an appeal "on quashing or setting aside an . . . information." (Crim. Code, § 283.)
The full language of the statute is that "appeals to the supreme court may be taken by the state in the following cases: . . . upon a judgment for the defendant on quashing or setting aside an indictment or information." (Crim. Code, § 283.) Under a somewhat similar statute, containing, however, other provisions possibly affecting the matter, the supreme court of Missouri held that an order quashing an indictment could not be reviewed on appeal until a final judgment for the defendant had been formally entered. (State v. Fraker, 141 Mo. 638, 43 S.W. 389.) We do not regard the omission to make a complete record, showing a technical final disposition of the case, as fatal to the right of review. The order sustaining the motion to quash by its own operation set aside the counts of the information so assailed, and left nothing pending in that respect against the defendant. True, the district court would for some purposes be regarded as retaining jurisdiction so long as an amendment might be contemplated, but when the state declined to amend it elected to treat the proceeding as at an end, and the practical effect was a discharge of the defendant as to the counts involved. The state's refusal to comply with the order requiring two of the counts to be recast created substantially the same situation with respect to them.
Upon the merits, the principal contention of the defendant is that the allegations of each of the first eight counts are too indefinite to advise it of the nature of the accusation against it. The statute under which they are drawn reads:
"All arrangements, contracts, agreements, trusts, or combinations between persons or corporations made with a view or which tend to prevent full and free competition in the importation, transportation or sale of articles imported into this state, or in the product, manufacture or sale of articles of domestic growth or product of domestic raw material, or for the loan or use of money, or to fix attorneys' or doctors' fees, and all arrangements, contracts, agreements, trusts or combinations between persons or corporations, designed or which tend to advance, reduce or control the price or the cost to the producer or to the consumer of any such products or articles, or to control the cost or rate of insurance, or which tend to advance or control the rate of interest for the loan or use of money to the borrower, or any other services, are hereby declared to be against public policy, unlawful and void." (Laws 1889, ch. 257, § 1, Gen. Stat. 1909, § 5185.)
"All persons entering into any such arrangement, contract, agreement, trust or combination, or who shall after the passage of this act attempt to carry out or act under such arrangement, contract, agreement, trust or combination . . . shall be guilty of a misdemeanor." (Laws 1889, ch. 257, § 3, Gen. Stat. 1909, § 5187.)
The first count, which, so far as concerns this question, is like the next seven, charges:
"That on the first day of July, 1909, at the county of Labette, in the state of Kansas, the said defendant, the Glenn Lumber Company, a corporation organized and existing under and by virtue of the laws of the state of Kansas, did then and there wrongfully and unlawfully make and enter into an arrangement contract, agreement and combination with the Monarch Portland Cement Company, a corporation organized and existing under and by virtue of the laws of the state...
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