29

participated in the execution of the conspiracy may be joined as defendants although their acts may have been separate and committed at different times.2 It has been held to be sufficient to aver that they were the managing officers and agents of the defendant company at certain times specified and then controlled the conduct of its business, when the unlawful acts of the corporation are specifically set forth.30

When the defendants have been convicted upon two separate counts of the same indictment, one charging a conviction in restraint of a certain branch of Interstate Commerce and the other a monopoly thereof; a separate punishment upon each may be inflicted.81

§ 506f. Indictments under the interstate commerce law. An indictment because of discrimination by a railroad company in favor of a shipper 1 must show that other shippers were not equally favored by the defendant.2

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

30 U. S. v. Patterson, 201 Fed. 697, reversed on another point, Patterson v. U. S., C. C. A., 222 Fed. 599.

31 U. S. v. McAndrews & Forbes Co., 149 Fed. 836.

§ 506f. 1 Act of February 4, 1887, Ch. 104, § 2, 24 St. at L., 379, Comp. St., § 8564.

"That if any common carrier subject to the provisions of this act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property, subject to the provisions of this act, than it charges, demands, collects or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traf

There is no need of an aver

fic under substantially similar circumstances and conditions, such common carrier shall be deemed to be guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful."

2 U. S. v. Hanley, 71 Fed. 673, 674, per Grosscup, J.: "The indictment ought to state all the facts that make the gist of the offense, and the gist of the offense is not completely disclosed unless it shows a case where two or more persons, making to the carrier an offering of traffic alike in point of time, kind, circumstances, and condition, have been treated differently in the rate exacted. A rebate or variation from the usual rate in force is not, alone, sufficient. It must be supplemented by another member of the comparison, namely, the existence of another shipper or shippers who, entitled to like treatment, have been denied it. A rebate, drawback, or special rate is not, of itself, unjust discrimination; for it does not neces

ment that any other shipper asked and was refused similar rates.3 "It cannot be necessary that the others should have known of the partiality and should have demanded equal treatment. Such concessions are naturally not made generally known. It is sufficient to show that at the same time under substantially similar conditions the railway company demanded and collected from other shippers a higher rate than was paid by the favored individual. In an indictment against a shipper for obtaining, through fraud, transportation while an embargo was in force, it is not necessary to aver that other shippers were denied similar transportation. It is sufficient to allege the embargo and that by the transportation which defendant obtained a discrimination was practiced in favor of the consignee against the United States and all other shippers who wished to ship similar and other commodities over the railroad naming some of them among others. It is not necessary to aver that the embargo was authorized by the President of the United States when the indictment shows that it was authorized by the Director General. A consignee is a shipper within the statutory. prohibition when he exercises such direct control over shipment of commodities consigned to him as to enable him to procure discrimination in his own favor.9 A count may charge a discrimination or concession, which does not in any way effect transportation rates or charges.10

The word "concession" was first used in the Act of February 19, 1903, sometimes known as the "Elkins Act." 11 It has been

sarily follow that a like rebate, drawback, or special rate has not been extended to all the patrons of the carrier."'

3 Hocking Valley Ry. Co. v. U. S., C. C. A., 210 Fed. 735, 746.

4 Ibid., per Denison, J.

5 Ibid.

6 U. S. v. Metropolitan Lumber Co., 254 Fed. 335.

7 Ibid.

8 Ibid.

9 Ibid.

10 Ibid.

11 Ch. 708, 32 St. at L. 847, § 1,

Comp. St., § 8597. "It shall be unlawful for any person, persons or corporation to offer, grant or give or to solicit, accept or receive any rebate, concession or discrimination in respect to the transportation of any property in interstate or foreign commerce by any common carrier subject to said act to regulate commerce and the acts amendatory thereto whereby any such property shall by any device whatever be transported at a less rate than that named in the tariffs published and filed by such carrier, as is required

said to be "apparently a catchall for any practice by either carrier or shipper which by any devise whatever would tend to defeat the purpose of the law." 12 When it is charged that there was a rebate or concession from the joint rate published and filed by the carrier as required by law there is no need of a further statement that such rate was required by the statute to be filed.13

Such an indictment need not aver that the established tariff was posted; 14 that any other shipper had been charged or paid the published rate; nor that any shipment was actually made at such rate.15 Nor that the defendant solicited the concession.16 It is the better practice to aver specifically, when a shipper is a defendant, that he knew the concession to be a privilege not accorded to others shipping under similar circumstances.17 Evidence that he did not know this is admissible.18

When the indictment charges that the carrier refused to transport similar commodities for other shippers at the rate which it charges defendant, there is no need of an averment that there was a departure from a tariff printed and filed in accordance with the statute.19 A crime charging that a carrier offered a discrimination needs no averment that the offer was accepted by the shipper; 20 but an allegation of giving a permit for transportation is insufficient.21 A count is insufficient which charges that demurrage has not been collected from, or paid by certain shippers, when no agreement upon the subject is pleaded.22

An indictment charging that a carrier by false billing assisted a shipper to obtain transportation at less than the regular rates need not set forth the waybills.23

An indictment charging use of free interstate railroad transportation need not negative the exception.24

It has been held that the offense of receiving a concession is a single crime irrespective of whether the property involved consists of train loads, car loads or pounds, that it is not completed until the shipper receives a rate more favorable than those which were established and that it cannot be split into separate crimes each consisting of a single shipment at an unlawful rate when each was not separately paid for.25

§ 506g. Indictments under the White Slave Traffic Act. An indictment under the White Slave Traffic Act of June 25, 1910,1

§ 506g. 1 Ch. 395, § 2, 36 Stat. 825, Comp. St., §§ 8813, 8814, 8815. "Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting, in interstate or foreign commerce, or in any Territory or in the District of Columbia, any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice; or who shall knowingly procure or obtain, or cause to be procured, or obtained, or aid or assist in procuring or obtaining, any ticket or tickets, or any form of transportation or evidence of the right thereto, to be used by any woman or girl in interstate or foreign commerce, or in any Territory or the District of Columbia, in going to any place for the purpose of prostitution or debauchery, or for any other im

moral purpose, or with the intent or purpose on the part of such person to induce, entice, or compel her to give herself up to the practice of prostitution, or to give herself up to debauchery, or any other immoral practice, whereby any such woman or girl shall be transported in interstate or foreign commerce, or in any Territory or the District of Columbia, shall be deemed guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding five thousand dollars, or by imprisonment of not more than five years, or by both such fine and imprisonment, in the discretion of the court."

"§ 3. Any person who shall knowingly persuade, induce, entice, or coerce, or cause to be persuaded, induced, enticed, or coerced, or aid or assist in persuading, inducing, enticing, or coercing any woman or girl to go from one place to another in interstate or foreign commerce, or in any Territory or the District of Columbia, for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose on the part of such person that such woman or girl shall engage in the practice of prostitution or debauchery, or any other

1

otherwise known as the Mann Law, is sufficient if it charges in the language of the statute a violation thereof, naming the woman, and the railway company or other common carrier by which the transportation took place, and then avers specifically the amount paid, the payee, that the purpose of the payment was for the woman's transportation for the purpose of prostitution from one State to another, or for payment for such transportation, as the case may be.2 An indictment is sufficient in its charge of the purpose of the payment when it avers that it was for the purpose of the woman's engaging in illicit intercourse, cohabitation and concubinage with accused, or "for the purpose of having unlawful sexual intercourse" with the accused.4 A count may charge that on a certain day the accused transported, caused to be transported, and aided and assisted in transporting in interstate commerce a certain woman for the purpose of prostitution.5

A count is not bad for duplicity because it charges the transportation of two women at the same time for the same immoral

immoral practice, whether with or without her consent, and who shall thereby knowingly cause or aid or assist in causing such woman or girl to go and to be carried or transported as a passenger upon the line or route of any common carrier or carriers in interstate or foreign commerce, or any Territory or the District of Columbia, shall be deemed guilty of a felony and on conviction thereof shall be punished by a fine of not more than five thousand dollars, or by imprisonment for a term not exceeding five years or by both such fine and imprisonment, in the discretion of the court.

"§ 4. Any person who shall knowingly persuade, induce, entice, or coerce any woman or girl under the age of eighteen years from any State or Territory or the District of Columbia to any other State or Territory or the District of Columbia, with the purpose and intent to in

duce or coerce her, or that she shall be induced or coerced to engage in prostitution or debauchery, or any other immoral practice, and shall in furtherance of such purpose knowingly induce or cause her to go and to be carried or transported as a passenger in interstate commerce upon the line or route of any common carrier or carriers, shall be deemed guilty of a felony, and on conviction thereof shall be punished by a fine of not more than ten thousand dollars, or by imprisonment for a term not exceeding ten years, or by both such fine and imprisonment, in the discretion of the court."'

2 Weddel v. U. S., C. C. A., 213 Fed. 208, 210.

3 U. S. v. Flaspoller, 205 Fed. 1006.

4 Carey v. U. S., C. C. A., 265 Fed. 515.

5 Freed v. U. S., D. C. C. A., 266 Fed. 1012.