
    State v. Ross Witherspoon.
    
      (Jackson,
    
    April Term, 1905.)
    1. MONOPOLIES, CONSPIRACIES, AND TRUSTS. Statute (Acts 1903, ch. 140) against, is declared constitutional and valid.
    The anti-trust statute (Acts 1903, ch. 140), declaring all agreements, trusts, and combinations, made with a view to lessen, or which tend to lessen, full and free competition in the transportation or sale of articles imported into the State, or in the manufacture or sale of articles of domestic growth, etc., and all agreements tending to control the price or cost to the purchaser or consumer of any product or article to be void, and subjecting parties to such agreements to criminal prosecution, is constitutional and valid. (Post, pp. 140-143.)
    Acts cited and construed: 1903, ch. 140.
    Cases cited and approved: Bailey v. Plumbers’ Association, 103 Tenn., 99; State v. Brewing Co., 104 Tenn., 715; Connolly v. Pipe Co., 184 U. S., 654, 46 L. Ed., 679.
    3. SAME. Indictment need not charge the means or the evidence of the conspiracy.
    An indictment for a violation of the anti-trust statute (Acts 1903, ch. 140) need not charge the means by which the unlawful agreement and conspiracy was intended to be effectuated, or the evidence tending to prove the unlawful agreement, for it is sufficient to charge in the indictment the existence and object of the conspiracy, without any statement of the means intended to be used in its accomplishment. (Post, pp. 143,144.)
    Cases cited and approved: Rex v. Eccles, 1 Leach, 274; Rex v. Gill & Henry, 2 B. & Aid., 204; People v. Richards, 1 Mich., 216; State v. Crowley, 41 Wis., 271.
    
      3. SAME. Indictment must state terms of agreement, the particular articles, and which are imported or of domestic growth or manufacture, when.
    An indictment for the violation of the anti-trust statute (Acts 1903, ch. 140), charging that the defendant, as agent, of a certain corporation, did unlawfully, knowingly, and feloniously carry out the terms of the agreement, combination, and conspiracy entered into by such corporation with another corporation, made with a view to lessen, and which tended to, and did lessen full and free competition in the importation and sale of articles imported into this State, and in the manufacture and sale of articles of domestic growth and of domestic raw material and which tended to, and did advance and control the price and cost of product and article to the consumer and buyer, but failing to state the terms of the agreement, or arrangement entered into by the parties, and the particular articles imported or of domestic manufacture or growth, the price of which such agreement, arrangement, and conspiracy tended to control and lessen or advance, is fatally defective.
    Acts cited and construed: 1903, ch. 140.
    Constitution cited and construed: Art. 1, secs. 9 and 14.
    4. INDICTMENTS. In words of statute are generally sufficient.
    An indictment for a statutory offense which substantially follows the statute is generally sufficient. (Post, p. 143.)
    Cases cited and approved: Griffin v. State, 109 Tenn., 17-21; State v. Morgan, 109 Tenn., 157-166.
    5. SAME. Sufficient definiteness of.
    All indictments must be sufficiently definite and direct in their averments to give the defendant notice of the particular crime, with which he is charged, and the nature thereof, and must so describe and* identify the offense that the judgment in the case can be relied on, in another prosecution for the same thing, as a former acquittal or conviction. (Post, pp. 143-147.) Cases cited and approved: Pearce v. State, 1 Sneed, 67; Daniel v. State, 3 Heis., 257; Lewis v. State, 3 Heis., 333; Smartt v. State, 112 Tenn., 539.
    Constitution cited and construed: Art. 1, secs. 9 and 14.
    PROM MADISON.
    Appeal from the Criminal Court of- Madison County. — Levi S. Woods, Judge.
    Attorney-General Cates, E. H. Spraggens and .Bullock & Timberlake, for State.
    Wm. H. Biggs, for Witherspoon.
   Mr. Justice Shields

delivered the opinion of the Court.

This case involves the sufficiency of an indictment against the defendant preferred under chapter 140, p. 268, of the Acts of 1903, commonly known as the “AntiTrust Statute” of that year.

The indictment, other than the formal caption, is in these words:

“The grand jurors for the State upon their oath present that Boss Witherspoon heretofore, to wit, on the -day of April, 1903, and at divers other times since said date, and before the finding of the indictment in this case, did in Madison county, Tennessee, unlawfully, knowingly, and feloniously as president, director and agent of the Southern Seating & Cabinet Company, a corporation chartered under the laws of the State of Tennessee, with its situs and principal place of business in Jackson, Tennessee, carry out the stipulations, purposes, prices, rates, and orders, made by the said Southern Seating & Cabinet Company with the American School Furniture Company, a foreign corporation, in furtherance of a conspiracy against trade, to wit, the said Southern Seating & Cabinet Company and the said American School Furniture Co. having theretofore entered into, and- being then and there parties to an arrangement, contract, agreement, trust, and combination with a view to lessen, and which tended to, and did lessen full and free competition in the importation and sale of articles imported into the State of Tennessee, and in. the manufacture and sale of articles of domestic groAvth and of domestic raw material, and which tended to and did advance and control the price and cost of such product and article to the consumer and buyer thereof against the peace and dignity of the State.”

It was quashed upon motion of the defendant, the grounds of the motion being:

(1) The said indictment does not charge or allege any crime or offense against the laws of Tennessee.

(2) It does not contain a sufficient statement of the facts constituting tbe offense or crime with the commission of which the defendant is charged.

(3) It does not state and describe any particular violation of the statute upon which it is predicated, but is general and indefinite in its terms. The State appeals, and assigns error.

The statute upon which this indictment is predicated (Acts 1903, p. 268, c. 140) has not been before this court for construction; but a similar statute, enacted in 1897 (Acts 1897, p. 241, c. 94), has been held constitutional and sustained. Bailey v. Master Plumbers, 103 Tenn., 99, 52 S. W., 853, 46 L. R. A., 561; State v. Schlitz Brewing Co., 104 Tenn., 715, 59 S. W., 1033.

This act — the one construed in the cases cited — contained a section exempting from its provisions contracts in relation to agricultural products and live stock while in the hands of the producer or raiser. A similar statute containing a like provision, enacted by the general assembly of Illinois was held by the supreme court of the United States, in the case of Connolly v.Union Sewer Pipe Company, 184 U. S., 554, 22 Sup. Ct., 431, 46 L. Ed., 679, to be for this reason a denial of the equal protection of the law, and repugnant to the fourteenth amendment of the constitution of the United States. The present act does not contain this objectionable provision. It is the same in all particulars as the former act, Avith that exception, and both upon the authority of the cases of Bailey v. Master Plumbers’ Association and State v. Schlitz Brewing Company, supra, and as a question of first impression, we are of the opinion, and hold, that it is a valid and constitutional statute.

The only question, then for consideration in this case is whether or not the indictment preferred against the defendant sufficiently charges a violation of the statute. The indictment follows, and is in the language of the act, and it is said, and generally it is true, that an indictment for a statutory offense which substantially follows the statute is sufficient. State v. Morgan, 109 Tenn., 157-166, 69 S. W., 970; Griffin v. State, 109 Tenn., 17-21, 70 S. W., 61; 1 Whart. Crim. Law, section 364.

It is also correctly said that in a prosecution for a conspiracy, which a violation of this statute is by it declared to be, the means by Avhich the unlawful agreement and conspiracy Avas intended to be effectuated, or the evidence tending to' prove the unlaAvful agreement, need not be set out, and that it is sufficient to charge in the indictment the existence and object of the conspiracy, Avitliout any statement of the means intended to be used in its accomplishment; the means being only matters of evidence to prove the fact of conspiracy. 3 Whart. Crim. Law, section 1345; 1 Eddy on Combinations, p. 226, section 350; Rex v. Eccles, 1 Leach, 274; Rex v. Gill & Henry, 2 B. & Ald., 204; People v. Richards, 1 Mich., 216, 51 Am. Dec., 75; State v. Crowley, 41 Wis., 271, 22 Am. Rep., 719.

But this does not meet the objection to this indictment. It is not that the indictment fails to' set out the means by which the conspiracy charged was intended to be carried into effect, bnt that the conspiracy and the object to> be effected are not sufficiently stated and charged so as to give the defendant notice of the particular crime and its nature with which he is charged, and to SO' describe and identify the offense that the judgment in this case could be relied upon in another for the same thing, as a former acquittal or conviction. All indictments must be sufficiently definite and direct in their averments to do these things. It is provided by our constitution: “That no person shall be put to answer any criminal charge but by presentment, indictment or impeachment,” and “that in all criminal prosecutions the accused hath the right to be heard by himself and his counsel and to demand the nature and cause of the accusation against him and to have a copy there-' of.” Const. art. 1, sections 9, 14.

This court said in the case of Pearce v. State, 1 Sneed, 67, 60 Am. Dec., 135, where the presentment was in the language of the statute, and charged the defendant with “unlawfully and knowingly voting in the county of Rhea, not being a qualified voter of said county”: “We think the presentment bad. The nature and cause of the accusation are not well stated. The presentment is in the words of the statute, and the words are ‘a qualified voter.’ And for the facts which constitute a qualified voter we are to refer to the constitution and laws, from which it will be seen that there are several grounds of disqualification. Now, for which of these Causes was the defendant disqualified? The presentment does not inform him, and the cause can only appear in the proof, when he may be taken by surprise and be wholly unprepared to make his defense, however just and valid it may be.”

And in Daniel v. State, 3 Heisk., 257, in sustaining a motion to quash a presentment against the plaintiff in error charging him with unlawfully and feloniously assuming to act as a justice of the peace of Meigs county, in trying a certain party upon a day named for a misdemeanor, “he not being at said time a legally qualified justice of the peace,” this court, after quoting-article 1, section 9, of the constitution above stated, said: “The object of this provision is unmistakable and clear, that a party accused should know from the statements and allegations of the indictment or presentment against him, not only the charge or accusation, but its nature and cause. It is intended to give him notice of the facts sought to be proved against him in order to his conviction, and for this purpose he is entitled to have a copy of the accusation.” And, after citing the case of Pearce v. State, supra, proceeds: There are at least four cases of disqualification from holding office in our State, so that the above case is conclusive of this one; unless we should overrule it; which we do not feel that we ought to do. We have examined this record containing the presentment, trial, and conviction, with the prO'Ceedings had therein, but as there is no bill of exceptions containing the proof in it, we áre totally at a loss to surmise what was the ‘nature and cause of the accusation’ of which the party stands convicted. We, therefore, cannot hold that the presentment gave the defendant notice of the offense with which he stood charged with sufficient certainty to enable him to make his defense to it understanding^.”

In Lewis v. State, 3 Heisk., 333, where the indictment charged the defendant with having stolen, “one five and one-dollar .greenback bill United States currency, national hank hills, and money,” in sustaining a motion for arrest of judgment it is said: “Can it he determined from this statement, with reasonable certainty, what it is that is charged to have been stolen? .Certainly greenback hills, United States currency, national hank hills, and money, cannot all mean the same thing; and to charge in the same count that a bill is a greenback bill, United States currency, national bank bill, is certainly indefinite and uncertain in its description of the articles said to have been stolen.”

In the late case of Smartt & Carson v. State, 112 Tenn., 539, 80 S. W., 586, the indictment charged the plaintiffs in error with the crime of committing an abortion, and with administering a drug and using instruments for the purpose of affecting an abortion in the language of the statute, hut the manner in which the instrument was used was not stated, and for this reason a motion was made in trial to quash the indictment because of an insufficient statement of facts constituting the offense, but was overruled. This court, in reversing tlie judgment of the trial court for failure to sustain the motion, said: “The principle underlying the rule is that there must he sufficient facts alleged to reasonably identify the special transaction upon which the defendant is being prosecuted, not only that he may know whereof he is accused, and may prepare his defense, but also in case of a subsequent prosecution, it may be made to appear whether he was prosecuted twice concerning the same matter. The mark of identification is slight, but it is substantial; and in a class of cases where the allegations of the indictment are necessarily very general, such means of marking' the transaction, which the case easily lends itself to, should not be ignored, but should be insisted upon.”

This indictment does charge that the defendant “as president, director, and agent of the Southern Seating & Cabinet Company, in Madison county, Tennessee,” did unlawfully, knowingly, and feloniously carry out the terms of the agreement, combination, and conspiracy entered into by the Southern Seating & Cabinet Company with the American School Furniture Company, made with a view to lessen, and whi ch tended to, and did lessen, full and free competition in the importation and sale of articles imported into this State and the manufacture and sale of articles of domestic growth and of domestic raw material, and which tended to, and did advance and control the price and cost of such product and article to the consumer and buyer. But it utterly fails to state the terms of the agreement, or arrangement entered into by the parties, and the particular articles imported or of domestic manufacture or growth, the price of which such arrangement, agreement and conspiracy tended to control and lessen or advance. The indictment would apply to imported articles as well as domestic articles, and to domestic manufactured articles equally with articles of raw material. It would apply equally to any one of the hundreds of articles of commerce which are imported into the State, or which are here manufactured or other-Avise produced. It clearly, for these reasons, fails to give the defendant any notice of the nature of the charge brought against him, or of the particular crime Avith which he is accused, and is held to answer, so that he could with intelligence prepare his defense. Nor is the crime charged so identified that the record in this case could be relied upon in another for the same offense upon the plea of former conviction or acquittal. The indictment should charge the particular article, Avhether imported or of domestic manufacture and growth, in relation to which the contract, arrangement, and agreement between the parties is made, and the effect of such arrangement upon the prices of such articles. Without a statement of these facts the defendant will be put to trial without presentment or indictment, and Avill be denied his constitutional right to know the nature and cause of the accusation against him.

The judgment of the trial court sustaining the motion to quash this indictment must therefore be affirmed. The defendant may be required to enter into a recognizance to appear at the next term of the circuit court of Madison county to answer such further proceedings as may be had in that court, in relation to the offense attempted to be charged , against him in the indictment quashed.  