the candidate of the Republican party and not for the candidate of the Democratic party.25 A further allegation that the third defendant aided and abetted the other two by printing these ballots for them, well knowing that their purpose in causing the ballots to be printed in the way they were printed was the purpose previously set forth.26

27

Indictments will be authorized because of a conspiracy by intimidation to make a citizen abandon a claim to Government land; to inflict upon him personal violence because he has informed the revenue officers of illicit distilling 28 and to intimidate a United States marshal and his posse and thus prevent them from making an arrest; 29 to lynch a prisoner in the custody of a United States' marshal or the latter's deputy.30

Such an indictment is not objectionable because it charges as an overt act in the execution of the conspiracy, murder; 31 nor is it duplex because it charges that both assault and murder were thus committed.32

No indictment will lie for a conspiracy by force or intimidation to hinder and prevent citizens of the United States, who are of African descent and colored, "in the free exercise and enjoyment of their several and respective right and privilege to vote at any election to be thereafter by law had and held" by the people of a specified State or subdivision thereof, it not appearing that the election was a Congressional election nor that the intent of the defendants was to prevent these citizens from voting because of their race, color, or previous condition of servitude.33 An indictment was not sustained which charged different overt acts without showing whether they related to the election of a Congressman or to the election of State officers held at the same time.34

135

No indictment will lie for a conspiracy to injure, oppress, threaten, or intimidate citizens and thus prevent the free exercise and enjoyment of their "lawful right and privilege to peaceably assemble together with each other and with other citizens of the United States for a peaceful and lawful purpose. The First Amendment prohibits Congress from abridging such rights; but neither this nor the Fourteenth Amendment forbids interference by a State or the citizens thereof with such right unless the meeting was intended for consultation in respect to national affairs and for the purpose of petitioning Congress for a redress of grievances.36 The right to assemble for such a purpose is an attribute of national citizenship, and a conspiracy to interfere therewith might be indictable.37 No indictment will lie for a conspiracy thus to hinder and prevent citizens of the United States in the free exercise and enjoyment of their right of "bearing arms for a lawful purpose. The Second Amendment applies to Congress only.39 Nor for a conspiracy to deprive citizens "of their respective several lives, and liberty of person without due process of law." 40 The Fourteenth Amendment prohibits action by the States, not by their citizens.41

38

No indictment will lie for a conspiracy thus "to hinder and prevent the parties in their respective free exercise and enjoymen of the rights, privileges, immunities, and protection granted and secured to them respectively as citizens of the United States, and as citizens of said State of Louisiana for the reason that they being then and there citizens of said State of the United States, were persons of African descent and race, and persons of color, and not white citizens thereof; and to hinder and prevent them in their several and respective free exercise and enjoyment of every, each, all and singular the several rights and privileges granted and secured to them by the constitution and laws of the United States."' 42

The charge is too broad. There is no specification of any particular right which the conspiracy seeks to infringe.43

506e. Indictments for conspiracy to restrain or monopolize interstate or international commerce.

and

An indictment under

Anti Trust or Anti Monopoly Law because of a conspiracy or combination to monopolize interstate or international commerce, or in restraint of trade between the States or with foreign nations, need aver no overt act. It should aver precisely and specifically the purpose of the conspiracy,3 the manner in which the monopoly was designed to be effected. This averment cannot be aided by subsequent allegations of overt acts not incorporated therein by reference.5 The in dictment should contain a distinct averment in the Words of the statute, or in equivalent language that, by means of the acts charged, the defendant has monopolized, or has combined or conspired to monopolize trade or commerce among the several States or with foreign nations. It should give the particulars of the contract, combination or monopoly and rely simply on the words of the statute." It may be that the words, "combination," or "combine" may be pleaded in the Ianguage of the statute, leaving the specifications to be ascertained by a bill of particulars. The words "monopoly'' and "monopolize" are not in themselves to be sufficient.10 It has been held that the phrase "a concerted plan" does. not imply an agreement.11 An averment that defendants entere d into a conspiracy "that they should" do certain acts that in pursuance and to effect the object thereof, they

not

and

43 Ibid.

$506e. 126 St. at L. 209, ch. 647, S4, Comp. St., § 8823, supra, §4541.

2 Nash v. U. S., 229 U. S. 373; Knauer v. U. S., C. C. A., 237 Fed. 8; U. S. v. Bopp, 237 Fed. 283.

3 U. S. v. McAndrews & Forbes Co., 149 Fed. 823; U. S. v. American Naval Stores Co., 186 Fed. 592, 595. See S. v. King, 250 Fed. 908. § 506c.

U.

Supra,

4U.

S. v. American Naval Stores

Co., 186 Fed. 592, 595.

5 U. S. v. Patterson, 55 Fed. 605, 639; U. S. v. McAndrews & Forbes Co., 149 Fed. 823, 831.

6 U. S. v. Greenhut, 50 Fed. 469. 7 U. S. v. Cowell, 243 Fed. 730. 8 U. S. v. McAndrews & Forbes Co., 149 Fed. 823, 831.

9 See § 522 infra.

10 U. S. v. American Naval Stores Co., 186 Fed. 592, 595. But see U. S. v. Cowell, 243 Fed. 730.

11 U. S. v. M. Piowaty & Sons, 251 Fed. 375.

Fed. Prac. Vol. III-32

acted as they had conspired as they should do sufficiently alleges that the conspiracy was actually entered upon.12 The indictment need not aver that defendants were engaged in interstate commerce; 18 nor that all of them were traders; 14 nor show that the defendants do not fall within one of the classes exempted from the operation of the statute; 15 nor that the conspiracy was successful.16

A demurrer was sustained to an indictment against a manufacturer alone, charging a combination in restraint of trade in violation of Sherman Anti-Trust Act, which averred only that defendant required its customers, to whom it sold its products, individually and not collectively, to sell at established prices, not alleged to be unreasonable, and refused to sell to customers who would not so agree, which did not charge that defendant had or attempted to acquire a monopoly, that it retained any control over the purchasers, or the goods after their sale, or any interest therein, or the right to control the disposition of the same, or that there was any combination or agreement between the customers themselves.17

The time of the formation of the conspiracy or of the commission of some overt act in pursuance of the conspiracy must be shown to have been within the three years statute of limitations; 18 but the exact time need not be alleged or proved.19 There can be no conviction for conspiring to interfere with competitors who ceased to exist more than three years before the indictment.20 Where the indictment alleged that during twenty years before certain business houses had been engaged in the commerce which defendants had conspired to monopolize, setting forth a list of such houses so far as known to the grand jurors, that the defendant corporation together with those who at different times

12 U. S. v. Knig, 229 Fed. 275. 13 Knauer v. U. S., C. C. A., 237 Fed. 8.

14 Nash v. U. S., 229 U. S. 373. 15 U. S. v. King, 250 Fed. 908. 16 Knauer v. U. S., C. C. A., 237 Fed. 8.

17 U. S. v. Colgate & Co., 253 Fed. 522.

18 Patterson v. U. S., C. C. A., 222

Fed. 599; U. S. v. National Packing Co., D. C., N. D., Illinois, March 2, 1910; per Landis, J.; Shield's Federal Courts and Practice 442. Supra, § 506c.

19 U. S. v. McAndrews & Forbes Co., 149 Fed. 823, 830.

20 Patterson v. U. S., C. C. A., 222 Fed. 599. See U. S. v. Cowell, 243

had been its officers during said time, had conspired to obtain such a monopoly and had engaged in such unlawful competition against the houses thus engaged and was still engaged in the execution of such conspiracy; it was held that it was not the intention of the pleader to aver that each of such competitors had been engaged in competition during the entire twenty years, but only to allege that during such period there was no time when one or more of them were not so engaged; and that the indictment was not void for uncertainty because of its failure to show which of these were thus engaged within the past three years, although the defendants could not be held liable for their acts against any who had previously abandoned such business.21

The indictment should allege the place of the conspiracy or combination, or of one of the overt acts performed in furtherance of such conspiracy.22 An averment that at a specified place within the district the defendants therein named unlawfully entered into a conspiracy therein described, that in pursuance of such conspiracy, and to effect its object, they did certain acts sufficiently charges that the crime was committed by each of the defendants within the district.23

It has been held that a count which charges both a monopoly and an attempt to monopolize is duplicitous, 24 but not one which shows an attempt unlawfully to take trade from several competitors,25 nor one alleging several means of accomplishing the monopoly, combination or conspiracy.26 A count for a conspiracy in restraint of a branch of interstate commerce may be joined with a count for a conspiracy to monopolize such branch and a count for creating such a monopoly.27

A corporation may be the subject of an indictment under these statutes.28 The officers of the corporation who personally

21 Ibid. U. S. v. Colgate & Co., 253 Fed. 522. See U. S. v. Cowell, 243 Fed. 730.

22 Patterson v. U. S., C. C. A., 222 Fed. 599. Supra, § 506c.

23 U. S. v. King, 229 Fed. 275. 24 U. S. v. American Naval Stores Co., 186 Fed. 592, 596. Supra, § 500.

25 Patterson v. U. S., C. C. A.,

222 Fed. 599; supra, §§ 501, 503.

26 Ibid.; U. S. v. McAndrews & Forbes Co., 149 Fed. 823, 836.

27 U. S. v. Patterson, 201 Fed. 697, reversed on another point, Patterson v. U. S., C. C. A., 222 Fed. 599; supra, § 506c.

28 U. S. v. McAndrews & Forbes Co., 149 Fed. 823; supra, § 506d.