United States v. Gustav Kissel

• Citation: 31 S.Ct. 124,54 L.Ed. 1168,218 U.S. 601
• Decision Date: 12 December 1910
• Docket Number: No. 390,390
• Parties: UNITED STATES, Plff. in Err., v. GUSTAV E. KISSEL and Thomas B. Harned
• Court: United States Supreme Court

218 U.S. 601

31 S.Ct. 124

54 L.Ed. 1168

UNITED STATES, Plff. in Err.,

v GUSTAV E. KISSEL and Thomas B. Harned.

No. 390.

Argued November 10 and 11, 1910.

Decided December 12, 1910.

Assistant Attorney General Fowler and Solicitor General Bowers for plaintiff in error.

[Argument of Counsel from pages 602-605 intentionally omitted] Messrs. William D. Guthrie, Joseph H. Choate, Leavitt J. Hunt, Howard S. Gans, William C. Osborn, George White-field Betts, Jr., De Lancey Nicoll, John M. Bowers, and John D. Lindsay for defendants in error.

Mr. Justice Holmes delivered the opinion of the court:

This is a writ of error brought by the United States to reverse a judgment of the circuit court, sustaining pleas in bar, pleaded to an indictment by the defendants in error. 173 Fed. 823. The first count of the indictment alleges that the defendants in error and others named, on December 30, 1903, and from that day until the day of presenting the indictment (July 1, 1909), have engaged in an unlawful conspiracy in restraint of trade in refined sugar among the several states of the Union; that is to say, to eliminate free competition and prevent all competition with the American Sugar Refining Company one of the defendants, by a would-be competitor, the Pennsylvania Sugar Refining Company. It then sets forth, at length, the means by which the alleged purpose was to be accomplished, and what are put forward as overt acts done in pursuance of the plan. In other counts, referring to the first, the defendants are alleged to have conspired to monopolize the trade in refined sugar among the states. There are similar counts as to the trade in raw sugar and molasses, and as to trade with foreign nations. The offenses aimed at, of course, are the conspiracies punished by the act of July 2, 1890, chap. 647, 26 Stat. at L. 209, U. S. Comp. Stat. 1901, p. 3200, commonly known as the Sherman act.

There are other counts in the indictment, but the argument was devoted mainly to these. The defendants severally pleaded to all of them the limitation of three years fixed by Rev. Stat. § 1044, U. S. Comp. Stat. 1901, p. 725, alleging that for more than three years before the finding of the indictment on July 1, 1909, they did not engage in, or do any act in aid of, such conspiracies. The defendant Kissel added averments that all the overt acts alleged to have been done within three years before July 1, 1909, were done without his participation, consent, or knowledge. He also pleaded that since October 6, 1906, the Pennsylvania Sugar Refining Company had been in the hands of a duly appointed receiver.

We deem it unnecessary to state the pleadings with more particularity, becauses the only question before us under the act of March 2, 1907, chap. 2564, 34 Stat. at L. 1246, U. S. Comp. Stat. Supp. 1909, p. 220, is whether the plea in bar can be sustained. That this court is confined to a consideration of the grounds of decision mentioned in the statute when an indictment is quashed was decided in United States v. Keitel, 211 U. S. 370, 399, 53 L. ed. 230, 245, 29 Sup. Ct. Rep. 123. We think that there is a similar limit when the case comes up under the other clause of the act, from a 'judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy.' This being so, we are not concerned with the technical sufficiency or redundancy of the indictment, or even, in the view that we presently shall express, with any consideration of the nature of the overt acts alleged. The indictment charges a conspiracy beginning in 1903, but continuing down to the date of filing. It pretty nearly was conceded that if a conspiracy of this kind can be continuous, then the pleas in bar are bad. Therefore we first will consider whether a conspiracy can have continuance in time.

The defendants argue that a conspiracy is a completed crime as soon as formed, that it is simply a case of unlawful agreement, and that therefore the continuando may be disregarded, and a plea is proper to show that the statute of limitations has run. Subsequent acts in pursuance of the agreement may renew the conspiracy or be evidence of a renewal, but do not change the nature of the original offense. So also, it is said, the fact that an unlawful contract contemplates future acts, or that the results of a successful conspiracy endure to a much later date, does not affect the character of the crime.

The argument, so far as the premises are true, does not suffice to prove that a conspiracy, although it exists as soon as the agreement is made, may not continue beyond the moment of making it. It is true that the unlawful agreement satisfies the definition of the crime, but it does not exhaust it. It also is true, of course, that the mere continuance of the result of a crime does not continue the crime. United States v. Irvine, 98 U. S. 450, 25 L. ed. 193, 3 Am. Crim. Rep. 334. But when the plot contemplates bringing to pass a continuous result that will not continue without the continuous co-operation of the conspirators to keep it up, and there is such continuous co-operation, it is a perversion of natural thought and of natural language to call such continuous co-operation a...