United States v. Armour & Co., 2706.

• Decision Date: 23 July 1943
• Docket Number: No. 2706.,2706.
• Citation: 137 F.2d 269
• Parties: UNITED STATES v. ARMOUR & CO. et al.
• Court: U.S. Court of Appeals — Tenth Circuit

137 F.2d 269 (1943)

UNITED STATES v. ARMOUR & CO. et al.

No. 2706.

Circuit Court of Appeals, Tenth Circuit.

July 23, 1943.

Holmes Baldridge, of Washington, D. C. (Robert C. Barnard, Sp. Asst. to the Atty. Gen., Tom C. Clark, Asst. Atty. Gen., and Charles E. Dierker, U. S. Atty., of Oklahoma City, Okl., on the brief), for appellant.

Frank G. Anderson and David I. Johnston, both of Oklahoma City, Okl. (Charles J. Faulkner, Jr., and John Potts Barnes, both of Chicago, Ill., Robert M. Rainey, and Streeter B. Flynn, both of Oklahoma City, Okl., and A. K. Gembick, of Chicago, Ill., on the brief), for appellees.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

The only question presented by this appeal is whether the indictment¹ is sufficient to state an offense in violation of Section 1 of the Sherman Anti-Trust Act, 15 U.S. C.A. § 1.² We note that the indictment was returned October 17, 1941, that the demurrers were not filed until March 12, 1942, that the opinion was not handed down until January 27, 1943, and that the order sustaining the demurrers was not entered until February 4, 1943. The record does not reveal the reason for this inordinate delay in disposing of a pending criminal charge.

At the outset it may be said that the indictment is not a model for clarity, nor one to be commended as an example of good pleading. But that is not what we are deciding. We inquire only to ascertain whether the indictment charges an offense with sufficient clarity to enable the defendants to properly prepare their defense, and with sufficient certainty and definiteness that the results of the trial would be an effective bar to a future proceeding on account of the same transactions.

In determining the sufficiency of the indictment, we look to its four corners and not to paragraph 17 alone, as appellees would have us do. United States v. King, D.C., 229 F. 275; United States v. American Medical Ass'n, 72 App.D.C. 12, 110 F.2d 703; Ex parte Pierce, C.C., 155 F. 663. Paragraphs 18 and 19 are as much a part of the indictment as paragraph 17, and if the three read together state an offense with such particularity as is required by law, then the indictment is good. "The character and effect of a conspiracy are not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole." United States v. Patten, 226 U.S. 525, 544, 33 S.Ct. 141, 145, 57 L.Ed. 333, 44 L.R.A.,N.S., 325.

The main attack levied at the indictment is that, (1) it is too vague, indefinite and uncertain, and (2) that no facts are alleged from which it can be determined that there was an unlawful agreement. In short, appellees contend that it is not sufficient to allege that certain parties conspired to restrain trade by fixing prices. Their position seems to be that an indictment must allege that the parties "agreed" to restrain trade by the means alleged, and that an indictment that does not contain the word "agree" or "agreement" is fatally defective.

We attach no such magic to the word "agreed" or "agreement." Of course, a conspiracy is the result of an unlawful agreement and without an agreement to restrain trade there can be no conspiracy, and an indictment which fails to charge such an agreement is fatally defective. But the words "agreed" or "agreement" are not without synonyms, and any words which fairly import a concerted action or a conniving together to restrain trade are sufficient to charge a conspiracy.

In Wright v. United States, 5 Cir., 108 F. 805, 810, it was said that:

"To charge that the three defendants (naming them) `did conspire' means that they agreed together or among themselves. While other verbs may be used, the verb `conspire' is certainly the most appropriate to charge a conspiracy. * * *

"The omission of words that would add nothing to the meaning of an indictment seems so clearly a defect of form only that the application of this statute is apparent."

In United States v. White, C.C., 171 F. 775, 776, the court said: "To allege that the defendants conspired is, at least, to allege that they agreed to do the matters which are set forth as the substance of their conspiracy. I do not mean to say that the mere fact that a conspiracy is alleged is sufficient to show that the conspiracy was unlawful, but that, taken at its lowest terms, to allege a conspiracy is to allege an agreement."

In United States v. Wupperman, D.C., 215 F. 135, 136, the court said: "The crime of `conspiracy' is sufficiently charged if it be stated that two or more persons, naming them, conspired (that is, agreed together) to commit some offense against the United States * * *."

In the recent case of United States v. St. Joseph Stockyards, D.C., 44 F.Supp. 31, Judge Otis held that an indictment which charged a "conspiracy to fix prices for sale on livestock market of hogs in restraint of interstate commerce under agreement that a defendant would purchase hogs each Saturday at prices paid on preceding Friday was not demurrable as failing to charge a crime under Sherman Anti-Trust Act."

If to conspire is to agree, and to allege that parties conspired is to allege that they agreed, then to allege that they entered into a conspiracy is to allege that they entered into an agreement.

The fair and reasonable import of the language of paragraph 17 is to charge that the defendants continuously, for a period of ten years, knowingly engaged in a conspiracy (that is, in an agreement or undertaking) to fix prices of hogs in the Oklahoma City market in restraint of trade, in violation of Section 1 of the Act. Standing alone, paragraph 17 would be insufficient to charge the offense with the definiteness and clarity required by law. But we may not ignore other allegations of the indictment simply because they were not made a part of the same paragraph. Paragraphs 18 and 19 set out in detail the elements of the unlawful agreement. When these, as well as succeeding paragraphs of the indictment, are considered together with paragraph 17, there can be no doubt as to the specific charges levied against the defendants.

It is further urged that the indictment failed to charge the individual defendants with the commission of any offense. The trial court did not specifically pass upon this point. In our opinion the contention is without merit. A detailed discussion of the reasons that lead to this conclusion would serve no useful purpose and would only unnecessarily encumber legal publications.

Reversed and remanded, with directions to reinstate the indictment and proceed to a trial of the issues.

PHILLIPS, Circuit Judge (concurring).

The gist of the offense defined in 15 U.S.C.A. § 1 is the unlawful conspiracy. It is not necessary that any act be done to effect the object of the conspiracy. The act of conspiring to restrain trade or commerce without more is made an offense. The offensive agreement or conspiracy...