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The statute is not limited to contracts or combinations which monopolize interstate commerce in any given commodity, but seeks to reach those which directly restrain or impair the freedom of interstate trade. The law reaches combinations which may fall short of complete control of a trade or business, and does not await the consolidation of many small combinations into the huge “trust” which shall control the production and sale of a commodity.
Again, it is argued that the features of the contract which fix the minimum to be taken by the fuel company in excess of the former production of the mines, and permit a proportionate reduction of the minimum quantity to be taken when the price is fixed so high that the fuel company cannot meet the market, are evidences that this is no more than an agreement to make the fuel company the common agent of the parties for the sale of the product of the mines at the market price. The answers to this position are obvious. In the constitution of such an agency the restrictive features of this contract are unnecessary. Should the fuel company be unable in all cases to meet the price fixed, the parties are nevertheless prohibited, during the life of the contract, from dealing with others, or selling at a less price than the committee has fixed, and the purchaser is not at liberty to deal with competitors for a supply of coal for this market. “It is the effect of the combination in limiting and restricting the right of each of the members to transact business in the ordinary way, as well as its effect upon the volume or extent of the dealing in the commodity that is regarded." The Addyston Case, 175 U. S. 245, 20 Sup. Ct. 109, 44 L. Ed. 149.
We think this contract, within the meaning of the statute, is in restraint of interstate commerce, and tends to create monopoly.
That the contract under consideration has relation to interstate commerce, within the meaning of the act, we think not doubtful. The coal was contracted for to be sold in the Western market. It is declared to be a main purpose of the contract to extend that market. The coal was in fact shipped to a number of Western states. The payments were to be made for the coal upon the basis of a 10 per cent. profit to the fuel company, and the excess to go to the members of the coal association. These sales were made, as it was intended and stipulated that they should be, in the Western states. Upon this subject, speaking for the court in the Addyston Case, 175 U. S. 241, 20 Sup. Ct. 107, 44 L. Ed. 147, Mr. Justice Peckham said:
"If, therefore, an agreement or combination directly restrains not alone the manufacture, but the purchase, sale, or exchange of the manufactured commodity among the several states, it is brought within the provisions of the statute. The power to regulate such commerce-that is, the power to prescribe the rules by which it shall be governed-is vested in congress; and, when congress has enacted a statute such as the one in question, any agreement or combination which directly operates, not alone upon the manufacture, but upon the sale, transportation, and delivery of an article of interstate commerce, by preventing or restricting its sale, etc., thereby regulates interstate commerce to that extent, and to the same extent intrenches upon the power of the national legislature and violates the statute."
Within this principle, we think the contract and combination under consideration have relation to interstate commerce.
The judgment of the circuit court is affirmed.
(116 Fed. 241.)
FLOWER v. UNITED STATES.
(Circuit Court of Appeals, Fifth Circuit. June 2, 1902.)
No. 1,153. 1. CRIMINAL LAW-CONFESSIONS-CORROBORATION AS TO CORPUS DELICTI.
A defendant in a criminal case cannot be convicted on his extrajudicial confession unless it is corroborated in a material and substantial manner by evidence aliunde as to the corpus delicti. Such evidence, however, need not be such as to alone establish that fact beyond a reasonable doubt, but it is sufficient if, when considered in connection with the confession, it satisfies the jury beyond a reasonable doubt that
the offense was committed, and that the defendant committed it. 2. SAME-EVIDENCE CONSIDERED.
Evidence considered, and held sufficient, when considered in connection with defendant's confession, made to different persons, to sustain a verdict finding him guilty of embezzlement of the funds of a national
bank of which he was paying teller. In Error to the Circuit Court of the United States for the Eastern District of Louisiana.
Lionel Adams, for plaintiff in error.
McCORMICK, Circuit Judge. Samuel Flower, the plaintiff in error, was indicted on May 20, 1901, for that, being paying teller of the Hibernia National Bank, he did on May 8, 1901, embezzle $36,000 of its moneys and funds, and on April 15th of the same year did abstract, take, carry, and send away $36,000 of other moneys and funds belonging to said bank. While, in conformity to strict pleading, the money charged to have been abstracted is described as “other” than that embezzled, both counts refer to, and are intended to cover, one and the same transaction. Flower in due course having been tried, convicted of embezzlement, and sentenced to be imprisoned in the United States penitentiary at Atlanta, Ga., thereafter, upon his application for a writ of error, was allowed to have his case reviewed before this court, and a supersedeas and stay of proceedings granted pending the determination of the same. The contention of the plaintiff in error is that, independent of his confession, there was no satisfactory or sufficient proof at the trial to establish the corpus delicti, and that, therefore, substantial error was committed, to his great damage, in the action of the court refusing a peremptory instruction directing his acquittal. The true basis of this contention appears somewhat obscurely in the requested charge the refusal of which is complained of in the second assignment of error. The charge requested is taken almost literally from the text of Wharton's work on Criminal Evidence (section 325), where the language is :
"A corpus delicti, the proof of which is essential to sustain a conviction. consists of a criminal act, and to sustain a conviction there must be proof of the defendant's guilty agency in the production of such act. With respect to the former of these, it is the established rule that the facts which
f 1. See Criminal Law, vol. 14, Cent. Dig. $$ 1223, 1226, and note at end of case.
are the basis of the corpus delicti form a distinct ingredient in the case of the prosecution, to be established beyond a reasonable doubt."
In the requested charge the words of Wharton's text, "respect to the former of these," are substituted by the words, “reference to the commission of the criminal act,” making the requested charge in full read as follows:
“The corpus delicti, the proof of which is essential to sustain a conviction, consists of a criminal act, and to sustain a conviction there must be proof of the defendant's guilty agency in the production of such act. With reference to the commission of the criminal act, it is the estilblished rule that the facts which are the basis of the corpus delicti form a distinct ingredient in the case of the prosecution, to be established beyond a reasona ble doubt."
Counsel for the plaintiff in error contends that the body of the crime in this case which it is necessary to prove is that the embezzlement itself had been committed by some one within three years prior to the finding of the indictment, and that both of these elements of the corpus delicti in this case must be shown by proof independent of the extrajudicial confessions of the accused, and beyond a reasonable doubt. As opposed to this view, the trial court appears to have adopted the doctrine that the law in this country is that a defendant in a criminal case cannot be convicted upon his confession, unless that confession is corroborated in a material and substantial manner so far as concerns the fact that the offense in question has actually been committed by some one; and unless the jury, after being satisfied that the confession is corroborated in the manner just stated, and upon considering the entire case, including the confession, is satisfied beyond a reasonable doubt that the offense was committed, and that the defendant committed it, the jury cannot convict; and proceeded to charge the jury substantially that this criminal charge involves the propositions (1) that the embezzlement has been committed by some one, and (2) that the defendant (the plaintiff in error) is the person who committed the crime, and then said:
"The fact that a crime was committed is called by the lawyers the 'corpus delicti.' In this case the corpus delicti is that some one embezzled the funds of the bank, and it is for you to decide whether, outside of the confessions of the defendant, you find material and substantial corroboration of his confessions as to the fact that some one embezzled
the funds of the bank. You are not to make the mistake of supposing that you are required to find outside of the confessions full proof that some one embezzled
the funds of the bank, nor are you required to find that the government has proven the defendant guilty of the charges against him outside of his confessions and without taking his confessions into consideration. All that is required on this branch of the case, as I have said before, is for you to find that outside of the confessions there is substantial and material corroboration of the confessions as to the question that some one embezzled
the funds of the bank. If you find that there is such corroboration outside of the confessions, then you will consider the confessions, together with all the other evidence in the case; and if, upon the consideration of the whole evidence, which would then include the confes. sions, you are satisfied beyond a reasonable doubt that the defendant is guilty, you are then bound to so tind; while, on the contrary, if a reasonable doubt of his guilt then arises in your minds, you should then acquit him. On the question whether the confessions are corroborated as to the corpus delicti,—that is, as to whether some one committed the offenses charged,
as well as on all other points in the case, you are to recollect and carefully consider all of the evidence."
All of the evidence substantially has been brought up by the bill of exceptions; and it appears therefrom that on the 8th day of May, 1901, the plaintiff in error was the paying teller of the Hibernia National Bank, in the city of New Orleans, and that on that day a duly appointed and commissioned examiner of national banks of this district was in the city for the purpose and engaged in the work of examining the national banks located here; that about the hour of 2:30 p. m. Mr. Flower asked one F. M. Folger, who was on duty that day at the Hibernia Bank as a special bank detective and guard, to see if he could get large denominations of bills for bills of small denominations from the New Orleans National Bank to the amount of $40,000. On the presentation of this request by Folger, the proper authorities of the New Orleans National Bank stated that they could not do so, which was duly reported to Mr. Flower by Mr. Folger. Mr. Flower then asked Mr. Folger to see the Louisiana National Bank, stating that he desired to exchange a sealed package of silver certificates amounting to $40,000. Folger saw the paying teller of the Louisiana National Bank, who said he could make the exchange in clearing house certificates. Upon that being reported to Mr. Flower, he gave Folger a sealed package purporting to contain $40,000. It was a government package, and labeled 4.000 ten-dollar bills, - $40,000. Mr. Folger took this package to the Louisiana National Bank, and in exchange therefor obtained eight clearing house certificates, of the denomination of $5,000 each, making a total of $40,000. This happened between 2:30 o'clock and 3 o'clock p. m., before the banks closed, on the 8th day of May, 1901. At 3:21 p. m. that day the bank examiner started an examination of the Hibernia National Bank, and on his examination of the department of the paying teller (Mr. Flower's department) found that Mr. Flower had all the cash on hand to correspond with the general book of the bank. In this amount of cash on hand was included $55,000 of what is called clearing house certificates, which were treated and accepted as cash, and included the eight certificates procured by Folger. The examination was thorough, and in all respects satisfactory to the examiner. The same examiner had made semiannual examinations of this bank and of this paying teller's department from the time of his appointment, in 1898, having made, in all, five examinations previously to this one, made on May 8, 1901, and on each occasion had found the cash in the hands of the paying teller to correspond with the general book of the bank, and the condition of the paying teller's department to be in all respects satisfactory. Some time between 3 and 4 o'clock in the afternoon of that day the witness Richard M. O'Brien found at his house, when he returned home, the following letter:
"Hibernia National Bank.
190_ “Mr. R. M. O'Brien-Dear Sir: This request will appear to you preposterous, but to me it is a matter of life itself. I am in an awful position. I have speculated with the bank's money to the extent of $36,000,
but can recover a part or all in time. The bank examiner will be here this evening at 3 o'clock, and of course I will be caught up with. The request that I make to you is that if I could only have the use of that much till tomorrow morning I would be absolutely safe, and could explain more fully to you about the whole matter and return to you the amount. My dear little wife went over to the Pass this morning to ask Capt. Menge to do this for me; he is a friend of my family. But when I let her go this morning I did not expect the examiner so soon, so I just telegraphed her that it was too late, as she would not be in time. My dear sir, just the use of $36,000 for a few hours would make such a difference to her and myself, and God will bless you for the act and my dear ones, my wife and mother, will kneel and pray for your happiness. There is good reason to believe that I will recover this amount if I had further time, and if I had it till to-morrow it would save me. May God in his mercy soften your heart, and let you grant my request. Dear sir, it is for such a short space of time I need it; but, oh, how important to me! In case you are indignant at my request, I will get my punishment this evening. So thanking you for your patience, I remain,
"Very respectfully and humbly, “[Signed)
Sam Flower." "P. S. Seeing you in the bank to-day, it come to me that there might be a possible chance of your helping me; it was like an inspiration from Above."
O'Brien did not advance the money as requested in the letter, but on the same day sent a memorandum to the cashier of the Hibernia National Bank, Mr. Palfrey. On the morning of the 9th of May, about half past 9 o'clock, the witness J. W. Castles, then president of the Hibernia National Bank, went to the bank at his usual time, about half past 9 o'clock, and the cashier showed him the memorandum received from Mr. O'Brien. After reading it, the president walked around to the paying teller, taking with him the receiving teller, Mr. Surgi, and told Mr. Flower to turn over his cash to Mr. Surgi and take a vacation. The president then went back to his desk. In a few minutes afterward Mr. Flower came back, and the president said to him, "Sam, where are you going?" Sam said, “I am not going anywhere.” He took his hat and left, and walked out of the bank. Before Mr. Flower had been directed to take his vacation and turn over his cash to Mr. Surgi, Mr. Folger had called on Mr. Flower for the eight certificates to be carried back to the Louisiana Bank, agreeably to the promise made upon obtaining them the evening before, and, having received them, had taken them to the Louisiana National Bank to exchange for the package of bills upon which they had been advanced, and, having made the exchange, he returned with the package to the Hibernia National Bank, and delivered it to Mr. Surgi, who was by that time acting as paying teller at the Hibernia Bank. Mr. Surgi, having no use for such a bundle in his paying teller's cage, took it back to the safe, and committed it to the custody of the cashier, Mr. Palfrey. On this morning (May 9, 1901) the witness J. H. Menge received a telephone message from Mrs. Flower, or some member of the family, stating that Sam was in trouble. Thereupon the witness went out to the house, where, he testifies
“Sam told me what his trouble was; that he was short in the bank thirty-five or thirty-six thousand dollars; and I advised him to send around and see the president of the bank, and told him that I was going down