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People v. Dwyer

31 N.Y. Crim. 62 Court SUPREME COURT—APP. DIVISION—FIRST DEPARTMENT, Decision date 1914-02-03 English

Delivered by McLaughlin, J.:

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SUPREME COURT—APP. DIVISION—FIRST DEPARTMENT,
Feb. 3 1914.
THE PEOPLE v. ERVING V. DWYER
(160 App. Div. 542.)

Headnote

(1) Penal Law, Sec. 580—Conspiracy to Fix the Price of Poultry..
The members of a receivers’ association, controlling about ninety per cent, of the poultry shipped to New York, and the members of a jobbers’ association, including nearly all the large wholesalers in the market, formed a joint association for the purpose of destroying competition and fixing and maintaining the prices at which poultry should be bought and sold.
(2.) Same.
Upon the prosecution of the members of such association for the crime of conspiracy under section 5S0 of the Penal Law, held, that proof that at different times by combined action they destroyed the business of independent dealers established their criminal intent, and that their conviction should be affirmed.
(3.) Same—May be Punished as Conspiracy to Count a Crime.
The conviction of the defendant may also be sustained as one prosecuted under subdivision 1 of section 580 of the Penal Law, as a conspiracy to commit a crime.
(4.) Same—Penal Law, Section 580, Not Repealed by General Business Law, Secs. 340 and 341.
Sections 340 and 341 of the General Business Law, prohibiting the creation or attempt to create a monopoly, do not repeal either directly or by implication section 580 of the Penal Law forbidding a conspiracy to do any act injurious to trade. There is no repugnancy between the two statutes.
(5.) Same—Indictment.
It is not necessary that the section of the statute under which a prosecution is being conducted should be named in the indictment
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'All that need be alleged and proved upon the trial are the specific facts which bring any given case within the statute.
(6.) Same—Entries in Book Kept by Co-Conspibator.
Entries in a book of account kept by the treasurer of the joint association were admissible in evidence as against him, and also against his coconspirators.
Appeal by the defendants, Erving Y. Dwyer and others, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, rendered against them on the 15th day of August, 1911, convicting them of conspiracy to commit acts injurious to trade and commerce, and for which each was sentenced to be imprisoned in the penitentiary for three months, and in addition thereto directed to pay a fine of $500.
Also, an appeal from an order denying defendants’ motion for a new trial made upon the minutes and for an arrest of judgment.
Edward E. McCall and I. N. Jacobson, for the appellants.
William A. De Ford, for the respondent.

This appeal is from a judgment convicting the appellants of the crime of conspiracy under section 580 of the Penal Law. Nineteen defendants were jointly indicted, of whom eighteen were tried together. One was acquitted by direction of the court, four found not guilty, and the remaining thirteen, the present appellants, convicted and each sentenced to be imprisoned in the penitentiary for three months, and in addition thereto pay a fine of $500. Defendants were engaged in buying and disposing of poultry in the city of New York, and were indicted for having conspired to suppress competition and to-

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maintain and regulate the market price of poultry. Prior to the formation of the pool hereinafter mentioned this business was carried on in substantially the following way: The poultry was purchased by shippers, so called, from the producers; they shipped the same to receivers, who sold it on commission to jobbers; they sold it to slaughter house men, who, in turn, killed and then sold it to the retailers. Nine of the defendants were receivers, eight of them jobbers and two both receivers and jobbers. In June, 1906, the principal receivers of poultry in the New York market, including those who are defendants, formed the New York Live Poultry Commission Merchants’ Protective Association. This association was formed mainly for the purpose of pooling the commissions by all of the members, to the end that the same might be divided among them in a certain proportion fixed by the articles of association. Some time prior thereto, for a similar purpose, the jobbers had formed the Jobbers’ Association of West Washington Market, of which all the jobber defendants were members. After the formation of the former association it entered into an agreement with the latter by which their respective profits should, each week, be paid into a pool and then divided, first, between the two associations, and thereafter subdivided among their members. This agreement also provided that the members of the jobbers’ association should .purchase all of the poultry received by the members of the receivers’ association at a price to be fixed each week by the two associations. The agreement in form was to last only from week to week, but in fact was continued and acted upon until defendants were indicted in March, 1910, changes being made from time to time as to the amount to be distributed. During a portion of the time, at least, the slaughter house men were included in the pool and participated in the profits. The purpose of combining the two associations was to destroy competition and fix and maintain the
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prices at which the poultry was bought and sold. The receivers who were in the pool controlled something like ninety per cent of the poultry shipped to New York, while the jobbers included nearly all the large wholesalers in the market. So effective was the pool that competition was destroyed and poultry substantially bought and sold at the price fixed weekly by the two associations. Any attempt made by a person either as receiver, jobber, slaughter house man or dealer not a member of the joint association or in some way connected with it or its members to purchase and sell poultry at a price other than that fixed by the associations was at once met by the strongest opposition. Among other methods employed they would purchase all of the poultry intended to be shipped to an independent receiver, thus cutting off his supply or, in case of a dealer, purchase his business; or, in case that could not be done, start a market in close proximity and undersell him. The result was that the joint action of the two associations destroyed competition and thereby fixed and controlled the price at which poultry was bought and sold—a monopoly as complete as their ingenuity could devise and effective as combined action could make it.

This fact was not seriously disputed at the trial or upon the argument of the appeal. It was, however, strenuously urged that, notwithstanding this may have been the result of the defendants’ acts as members of the associations referred to, nevertheless they were not criminally liable since they had no criminal intent in what they did. One is presumed to intend the result of his own acts and the defendants are not in a position to complain if they are judged by that standard. But the proof shows that the intent was criminal because at different times the association took combined action to destroy the business of independent dealers, whether receivers, jobbers or slaughter house men, and their intent in doing so is. as obvious

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as though specifically admitted. The formation of the joint association was one not sanctioned by law, created for an illegal purpose and thereafter maintained by criminal methods.

But it is said the judgment of conviction should be reversed for certain errors which in no way affect the merits. The principal point urged in this connection is that the provision of the Penal Law (§580) under which the indictment was drawn and the case submitted to the jury was not in force, since it, or rather the statute of which it was a re-enactment, had been repealed by implication by sections 1 and 2 of chapter 690 of the Laws of 1899 which have been re-enacted as sections 340 and 341 of the General Business Law. The section of the Penal Law referred to is a re-enactment of section 168 of the Penal Code (Laws of 1881, chap. 676), and provides, among other things, that “ If two or more persons conspire: 1. To commit a crime; or * * ®. 6. To commit any act * * * injurious to trade or commerce, ® * * Each of them is guilty of a misdemeanor.” Section 1 of chapter 690 of the Laws of 1899 (now section 344 of the General Business Law) was enacted subsequent to the enactment of section 168 of the Penal Code, and provides that “ Every contract, agreement, arrangement or combination whereby a monopoly in the manufacture, production or sale in this State of any article or commodity of common use is or may bs^ created, established or maintained, or whereby competition in this State in the supply or price of any such article or commodity is or may be restrained or prevented, or whereby for the purpose of creating, establishing or maintaining a monopoly within this State of the manufacture, production or sale of any such article or commodity, the free pursuit in this State of any lawful business, trade or occupation is or may be restricted or prevented, is hereby declared to be against public policy and void.” And section 2 of the same chapter (now section 341 of the General Business

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Law) provides that every person who makes or attempts to make such agreement is guilty of a misdemeanor and on conviction shall be punished by a fine not exceeding $5,000 or by imprisonment for not longer than one year or by both. The General Business Law took effect February 17, 1909, and the Penal Law took effect March 12, 1909, but these statutes are to be construed as continuations of the prior existing laws. (See Gen. Const. Law [Consol. Laws, chap. 22; Laws of 1909,, chap. 27], § §95,101; Laws of 1909, chap. 596.) The sections of the General Business Law do not in terms repeal section 580 of the Penal Law, nor in my opinion do they do so by implication. There is no repugnancy between the two statutes. Each can be enforced and each, in a measure at least, is directed towards a different act. The Penal Law forbids a conspiracy to do any act injurious to trade, while the General Business Law prohibits the creation or attempt to create a monopoly; in other words, the General Business Law prohibits the doing or' attempt to do the thing itself, regardless of the question of conspiracy, and the Penal Law can only be violated by two or more persons conspiring to bring about what is prohibited in the General Business Law. To establish a conspiracy under the Penal Law some overt act must be shown (Penal Law, § 583),. which is not necessary under the General Business Law. It: is true the same act may be a crime under both statutes, but: there is nothing to indicate that the Legislature intended to substitute one for the other. Besides, the repeal of a statute by implication is not looked upon with favor. As was said in Dams v. Supreme Lodge, Knights of Honor ( 165 N. Y. 159 ) : “ The leaning of the courts is so strong against repealing the positive provisions of a former statute by construction as almost to establish the doctrine of no repeal by implication. Where there is a difference in the whole purview of two statutes.
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apparently relating to the same subject, the former remains in force.”

But even if it were held that section 580 of the Penal Law were repealed by the sections of the General Business Law to which reference has been made, nevertheless I think this conviction could be sustained. It is not necessary that the section -of the statute under which a prosecution is being conducted should be named in the indictment. All that need be alleged in an indictment, and proved upon the trial, are the specific facts which bring any given case within the statute. (People v. Miller, 143 App. Div. 251 ; affd., 202 N. Y. 618 .) Every fact necessary to show a violation of the Business Law was charged in the indictment under which the defendants were convicted; such facts were established at the trial and it does not now lie with the defendants to complain that they were not convicted under that statute instead of under the Penal Law. The General Business Law provides a greater punishment and requires less proof than does a conviction under section 580 of the Penal Law, so that -if the appellants’ contention were correct, which I do not think it is as to the repeal of this section, they were benefited rather than prejudiced by the conviction under the latter statute.

The conviction can also be sustained as one prosecuted under subdivision 1 of section 580 of the Penal Law as a conspiracy to commit a crime, viz., the one prohibited by the sections of the General Business Law.

It is also urged that error was committed in admitting in evidence certain entries in a book of account kept by the treasurer of the joint association, who was also treasurer of the receivers’ association. The book was kept by him as part of his official duties. It showed all sums received and disbursed by him as treasurer of the two associations. It was admitted in evidence and then the learned district attorney proceeded to

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question the treasurer as to three specific entries. Defendants’ counsel moved to have those entries stricken from the record, which the court refused, and to which an exception was taken. I think the ruling was correct. The entries were, “ End of the year. War will be declared now very soon,” which was written immediately after the regular entries for February 6, 1909. The next entry was, “ Three weeks’ period of unrest,” written immediately before the entries for February thirteenth; and “ War is over,” written after the entries for February twenty-seventh. There is at least some evidence in the record to the effect that about this time active steps were taken by the association to stifle competition and its profits were somewhat diminished, and this the jury had a right to consider, notwithstanding the treasurer testified that the entries were meaningless, inserted by him merely as “ book-marks,” and that no one else, with the exception of his son, ever saw them. The treasurer was one of the coconspirators. The entries were made by him in the records of the conspiracy. They were, therefore, admissible as against him and also against his coconspirators. (People v. McKane, 143 N. Y. 455 ; People v. Miles, 123 App. Div. 862 ; affd., 192 N. Y. 541 .)

Finally, it is claimed the defendants did not have a fair trial by reason of the misconduct of the district attorney in making certain remarks, especially in regard to defendants’ counsel. The conduct of defendants’ counsel was, in the main, responsible for the remarks and defendants are not now in a position to complain thereof. Besides, the jury could not possibly have been influenced by them. It was instructed time and again to disregard them and to decide the issues solely upon the evidence.

Other points are raised by the appellants, but after an examination we find none of them which require consideration.

The judgment of conviction is, therefore, affirmed.

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Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Judgment and order affirmed.

NOTE ON CONSPIRACIES IN RESTRAINT OP TRADE.

A trading corporation is entitled to all the advantages it can secure under fair and free competition, but its officers and agents may become criminally liable if they confederate to secure a monopoly by threats and menaces against competitors to force and coerce them to relinquish the rights to the fullest enjoyment of which all are entitled. People v. Duke, 19 Misc. 292 ; 11 N. Y. Crim. 472 .

Where defendants were charged with a conspiracy in that they entered into an agreement in restraint of trade, it is no defense that the article sold by them was not a necessity, since the character of the trade sought to be restrained is immaterial, provided the trade is lawful. People v. Duke, 19 Mise. 292; 11 N. Y. Crim. 472 .

A conspiracy to injure a person’s business by preventing, by means of threats and intimidations, persons from entering his employment, is a crime at common law and under sect. 580, Penal Law. Davis v. Zimmerman, 91 Hun, 489 .

A combination of sailor’s boarding house keepers agreeing not to ship any seaman at the office of certain notaries is a conspiracy under .section 580, Penal Law. Emanuel’s Case, 6 C. H. Rec. 33.

A combination of theatres for the booking of attractions, held not a ■conspiracy within the provisions of section 580, Penal Law, subd. 5. People v. Klaw, 55 Misc. 72 ; 21 N. Y. Crim. 353 .

When the exclusion of a dramatic critic from theatres controlled by members of a theatre managers association is not a conspiracy within the provisions of Penal Law, section 580, subd. 6. People ex rel. Burn-

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ham v. Flynn, 189 N. Y. 180 ; 114 App. Div. 578 ; 49 Misc. 328 ; 21 N. Y. Grim. 449.

There must be some evidence of an overt act; evidence of something done in support of the conspiracy. People v. Radt, 15 N. Y. Crim. 174 ; 71 N. Y. Supp. 846 .

Evidence held insufficient to warrant a conviction. People v. Chamdler, 54 App. Div. Ill, 15 N. Y. Grim. 165.

As to sufficiency of indictment under subd. 5, section 580, Penal Law, see People v. McFarlin, 43 Mise. 591, 18 N. Y. Grim. 414; People v. Lenhardt, 4 N. Y. Grim. 317.

Combinations to unlawfully advance the price of articles of food are conspiracies in restraint of trade, and punishable under the provisions of subd. 6 of section 580, Penal Law. Beonard v. Poole, 114 N. Y. 377 .

The unlawful purpose of a strike may be evidenced by force, threats or intimidation to prevent another from exercising an unlawful trade. People v. Smith, 5 N. Y. Grim. 509.

An organization of coal dealers, intended to prevent competition in prices, in pursuance of which the price of coal is raised, is a conspiracy under section 580, Penal Law. People v. Sheldon, 139 N. Y. 251 , 10 N. Y. Crim. 518 .

Cases cited

Statutes and regulations cited