United States v. Armour & Co.

• Decision Date: 27 January 1943
• Docket Number: No. 13807 Criminal.,13807 Criminal.
• Citation: United States v. Armour & Co., 48 F. Supp. 801 (W.D. Okla. 1943)
• Parties: UNITED STATES v. ARMOUR & CO. et al.
• Court: U.S. District Court — Western District of Oklahoma

48 F. Supp. 801

UNITED STATES v. ARMOUR & CO. et al.

No. 13807 Criminal.

District Court, W. D. Oklahoma.

January 27, 1943.

Holmes Baldridge, Sp. Asst. to Atty. Gen., of Washington, D. C., and Charles E. Dierker, U. S. Atty., of Oklahoma City, Okl. (Thurman Arnold, Asst. Atty. Gen., Daniel B. Britt and Thos. H. Daly, Sp. Assts. to Atty. Gen., and Robert Diller, Willis L. Hotchkiss, and Richard B. O'Donnell, Sp. Attys., all of Washington, D. C., on the brief), for plaintiff.

David I. Johnston, of Oklahoma City, Okl. (Charles J. Faulkner, Jr., and John Potts Barnes, both of Chicago, Ill., on the brief), for defendant Armour et al.

Frank G. Anderson and Rainey, Flynn, Green & Anderson, all of Oklahoma City, Okl. (A. K. Gembick, of Chicago, Ill., on the brief), for defendant Wilson et al.

VAUGHT, District Judge.

The indictment in this cause charges the defendants with having knowingly and continuously engaged in a conspiracy to fix prices for the sale of hogs in the Oklahoma City livestock market, the defendants named in the indictment being two corporations and five individuals.

The government, in its brief, states: "* * * paragraphs 17 and 18 charge the crime, paragraph 17 charging defendants with a conspiracy to fix prices on hogs purchased on the Oklahoma City livestock market and paragraph 18 setting out the means adopted to effect the objective of price fixing charged in paragraph 17; paragraphs 19 to 24 set out overt acts done pursuant to the conspiracy; * * *."

Paragraphs 17, 18 and 19 of the indictment, therefore, are set out in full as follows:

"17. During a period of approximately ten years immediately preceding the date of the return of this indictment, the defendants and other persons to the Grand Jurors unknown have engaged knowingly and continuously in a conspiracy to fix prices for the sale in the Oklahoma City livestock market of hogs shipped from points in Oklahoma and other states to the said market for sale therein, which conspiracy has been in restraint of the interstate trade and commerce described in this indictment and in violation of Section 1 of the Act of Congress of July 2, 1890, as amended (U.S.C., Title 15, Section 1 15 U.S.C.A. § 1), commonly known as the Sherman Act.

"18. It has been a part of the aforesaid conspiracy that the defendants Armour and Wilson purchase equal numbers of hogs each year and each month in the aforesaid livestock market; that the defendants Armour and Wilson, from time to time, purchase particular shipments of hogs received at the aforesaid market, divide the number of hogs in each of such shipments equally between themselves, and pay identical prices for the hogs in the shipments so divided; that the defendants Armour and Wilson regulate their Saturday buying of hogs in the aforesaid market on a reciprocal basis, the one refraining from Saturday purchases when the other enters the market on that day; that the defendants Armour and Wilson purchase hogs in the Oklahoma City livestock market at a fixed differential below hog prices in the livestock market at Kansas City, Missouri; that the defendants Armour and Wilson purchase garbage-fed hogs in the Oklahoma City livestock market at a fixed discount; and that the defendants Armour and Wilson threaten to cease purchasing hogs from commission firms selling to other buyers of hogs in the Oklahoma City livestock market and in other ways obstruct and impede the lawful buying and selling liberties of such commission firms and of buyers of hogs in the aforesaid market other than Armour and Wilson.

"19. During the period of time covered by this indictment and for the purpose of forming and effectuating the aforesaid conspiracy, the defendants by agreement and concerted action have done the things which, as hereinbefore alleged, they conspired to do, and more particularly have done, among others, the following acts and things:"

The defendants have filed separate demurrers to the indictment and in support thereof urge three general grounds.

"(1) The allegations of the indictment are so vague, indefinite, and uncertain as to fail to apprise defendants of the nature of the charge against them.

"(2) The indictment is defective because it charges several separate and independent conspiracies in a single count.

"(3) The indictment charges no offense against the natural persons made defendants."

The first and third grounds urged will be considered as a whole rather than in the subdivisions urged, as they are so interwoven as to make it imperative that they be so considered, and since the court reaches a definite conclusion as respects the first and third grounds, it will not be necessary to consider the second.

Counsel have submitted the case on oral argument and in addition thereto have filed briefs. Careful consideration has been given the oral arguments, the briefs and the authorities cited therein. In addition thereto, the court has made considerable research of the authorities independent of those cited in the briefs.

The crime of conspiracy is the most easily charged of all crimes, and when charged in general terms or in the simple language of the statute, is the most difficult to defend against. Because of its peculiar character, the wide scope covered by the allegation of a conspiracy, and the necessity of protecting the constitutional rights of the defendants so charged, a definite statement of the facts, which constitute the offense, is required. This requirement has been sustained by a long line of decisions by our appellate courts.

One of the earliest cases dealing with necessary allegations of an indictment, and the one perhaps most often quoted, is United States v. Cruikshank et al., 92 U.S. 542, 557, 23 L.Ed. 588, in which the court said: "In criminal cases, prosecuted under the laws of the United States, the accused has the constitutional right `to be informed of the nature and cause of the accusation.' Amend. VI. In United States v. Mills, 7 Pet. 138, 142 8 L.Ed. 636, this was construed to mean, that the indictment must set forth the offence `with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged;' and in United States v. Cook, 17 Wall. 168, 174 21 L.Ed. 538, that `every ingredient of which the offence is composed must be accurately and clearly alleged.' It is an elementary principle of criminal pleading, that where the definition of an offence, whether it be at common law or by statute, `includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition; but it must state the species, — it must descend to particulars.' 1 Arch.Cr.Pr. and Pl., 291. The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place, and circumstances."

In United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135, the court said: "In an indictment upon a statute, it is not sufficient to set forth the offence in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished; and the fact that the statute in question, read in the light of the common law, and of other statutes on the like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that intent. United States v. Cruikshank, 92 U.S. 542 23 L.Ed. 588."

In United States v. Hess, 124 U.S. 483, 486, 8 S.Ct. 571, 573, 31 L.Ed. 516, the court, speaking through Mr. Justice Field, said: "The statute upon which the indictment is founded only describes the general nature of the offense prohibited; and the indictment, in repeating its language without averments disclosing the particulars of the alleged offense, states no matters upon which issue could be formed for submission to a jury. The general, and with few exceptions, of which the present case is not one, the universal rule, on this subject, is, that all the material facts and circumstances embraced in the definition of the offense must be stated, or the indictment will be defective. No essential element of the crime can be omitted without destroying the whole pleading. The omission cannot be supplied by intendment or implication, and the charge must be made directly, and not inferentially, or by way of recital."

In Pettibone v. United States, 148 U.S. 197, 203, 13 S.Ct. 542, 545, 37 L. Ed. 419, the court, speaking through Mr. Chief Justice Fuller, said: "A conspiracy is sufficiently described as a combination of two or more persons, by concerted action, to accomplish a criminal or unlawful purpose, or some purpose not in itself criminal or unlawful, by criminal or unlawful means, and the rule is accepted, as laid down by Chief Justice Shaw in Commonwealth v. Hunt, 4 Metc., Mass., 111 38 Am.Dec. 346, that, when the criminality of a conspiracy consists in an unlawful agreement of two or more persons to compass or promote some criminal or illegal purpose, that purpose must be fully and clearly stated in the indictment, while if the criminality of the offense consists in the agreement to accomplish a purpose, not in itself criminal or unlawful, by criminal or unlawful means, the means must be set out." Citing in the opinion the Carll and Hess cases, supra.

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