Mr. MILLER. The only idea I had about profits was that the court might charge the jury that they might take into consideration the question of profits on the question of the existence as a circumstance to be considered with all the other circumstances upon the question of the existence of a combination. The COURT. Well, I don't think so. Mr. MILLER. Well, I would like The COURT. That point will be saved; then you want to cover the proposition about the perishable commodities. That is another fundamental proposition in the case. Mr. MAYER. That is included in these charges. I suggest that after Mr. Miller has concluded I can cover mine in just one sentence. Mr. Miller has reference to the charge as your honor gave it. The COURT. Yes. Mr. CREWS. I have this suggestion, if some of us have ideas that we think the court would change, or wanted to preserve our record, might we not have the privilege simply of putting in the form of suggestion such changes as we have to suggest that really are perhaps fundamental, and save time in that way by making up the record on it without taking time here now to go on with the charge. The COURT. I am not disposed to cut short the time. Mr. MILLER. We don't want to take time ourselves; we want to be as brief as we can. The COURT. At the same time I want to be advised of the suggestion so that if I do want to change my mind or make a furthehr charge I can do it before the jury retires. Mr. PAYNE. Let Mr. Miller go right on. Mr. MILLER. Well, I would like to preserve an exception as to your honor's charge as to the effect of acts done prior to the three years. The COURT. That will be done. Mr. MILLER. Your honor charged the jury that they might be considered in reaching a conclusion as to the existence as to the commission of a crime within the three years. I thought myself that your honor put that too strong, that those prior circumstances could not be used either as proof of acts within the three years or used as a basis of an inference. The COURT. I thought, at least, I intended to say that they could be considered as explaining what was done within the three years. Mr. MILLER. Well, I suppose, your honor, what the court said there he said deliberately. The COURT. Well, let me see. Mr. MILLER. I wasn't able to get it down very well. The COURT. No; I think I will let this stand as it is. Mr. MILLER. Well, I reserve an exception to it. The COURT. And then when we come to make up the record we can take this charge and you can quote from it as much as you please in identifying exceptions. Mr. SHEEAN. Well, couldn't that be, if the exception be in the mere formal language, that that should be noted now. The COURT. Oh, yes. Mr. SHEEAN. These exceptions should only go to the fundamental principle as stated there. If there be any inaccuracy in the verbiage of that particular part I think that should be noted now. Mr. MILLER. No; it was not that. I understood your honor to charge Mr. SHEEAN. It is so understood. Mr. MILLER. Yes; it is so understood. the jury that they might compare the handwriting in the present state of the evidence as to these Pratt exhibits, I think. The COURT. Yes. Mr. MILLER. I also want to preserve exception to what your honor said as to the witnesses swearing falsely. That charge is well enough where evidence is contradictory of witnesses for the defense or the witnesses for the other party, but I don't believe, it doesn't seem to me that that applied The COURT. I could not think of any other way to cover it, and yet I felt that some of the witnesses had so acted in this case that it was absolutely necessary to cover it in some way. Mr. BUCKINGHAM. I think we ought to have an exception to the language of the court in construing the Sherman Act as applied to the restriction of competion merely. We would like to elaborate that, of course, along with the others. The COURT. As long as I have told the jury that they have nothing to do with the construction of the act-I nearly took that all out as being unnecessary, but the exception will be noted. Mr. BUCKINGHAM. In that same connection, in not instructing them as we request your honor to do, that only those restrictions of competition which are in their nature unreasonable, in view of the course of the business, are meant by the act. The COURT. Those 11 sheets that Judge Payne has, it seems to me, covered that situation completely, and they may be offered to me now as requests at this time and go in the record. Mr. PAYNE. And the record show their refusal. The COURT. Yes. Mr. PAYNE. It is not necessary to mark them for identification? Mr. MILLER. In connection with the portion of your charge referring to the public injury, your honor used some statement with respect to the political purpose in the Sherman Act of preventing the The COURT. Accumulation? Mr. MILLER. Acquired power. The COURT. Accumulated power. Mr. MILLER. Accumulation of power; yes. The COURT. Coming from the great accumulation of wealth. Mr. MILLER. I would like to preserve exception to that. The COURT. It may be done. Mr. MILLER. Perhaps it is already done in the connection in which it is. I also want to preserve an exception to your honor's charge to the jury as upon the effect of the uniform system of figuring costs, arriving at the figured cost. and the use of such cost as a basis for making sales of beef and the purchase of cattle. The COURT. You mean because the court made mention of the facts or—— Mr. MILLER. No; it was as to your honor's charge on that and the other acts charged-that if they used such cost as a basis for making sales of beef and as a basis for purchase of cattle. As I conceive it that ought to go with the statement that as requested in some of the instructions. The COURT. That was followed by the further charge that if the jury found that the adoption of that system and the use of that system necessarily resulted in a certain thing they could assume that that result was intended. That is, as I recall, the connection in which I mentioned the cost, and the only connection. Mr. MILLÈR. I wasn't quite satisfied with your Honor's charge in that respect. Mr. PAYNE. It seemed to me that you emphasized the two propositions stated, and then coupled up with that the general statement of the other Mr. MILLER. The other acts charged in the additional counts of the indictment. Mr. PAYNE. Yes. Mr. MILLER. That is what I had well in mind. In other words, I think that was obvious when your Honor took up the National Packing. Co., the use of the National Packing Co., unless the jury are to study the indictment it seems to me that you would need to state to them the very things with respect to that and with respect to the use of the test cost that are necessary to be proved. And then I think the use of the uniform test cost, that it is concerted, a concerted cost, the jury ought to be told that that in itself, and the exchange of information, in themselves were perfectly proper, unless the concerted cost was devised for the purpose, and used for the purpose of getting a measuring stick and requiring the prices to be obtained in manner and form as the indictment charges; and with respect to the National that the jury should be satisfied that it was used in manner and form as stated in the counts 1, 4, and 5, namely, as a means of controlling and directing the business of Armour & Co., Swift & Co., and Morris & Co. The results of agreeing together at the meetings of the National, or through the device of the National, as to how the business of these other companies should be conducted, and that the directions went out after it. It would seem to me that these requirements of the indictment ought to be emphasized to the jury-that is, I don't mean emphasized, I mean disclosed, of course, if they should read the indictment all the way through, it may not be necessary. Now, the indictment never has been so very fully explained to the jury as to what the essential charges of it are that are necessary to be proved in order to justify a verdict of guilty. The COURT. Now, Mr. Mayer. Mr. MAYER. I won't take up your time, because you have read these requests that I gave you on the 18th of March. I suppose, your honor, that you will let the record show that we except to your refusal to give each and all of the 30 requests, except request No. 1, request No. 2, request No. 5, request No. 6, each and all of the other requests your honor has refused in the form and manner in which they were submitted to you. The COURT. Well, is the only objection that I refused to give them in the form? Mr. MAYER. No; it is the substance. I can give you an illustration, for instance, if you want it: Take these requests; take, for instance, request 24, with reference to the presumption of innocence. The COURT. How does that begin, Mr. Mayer? These are not numbered here. Mr. MAYER. Yes; they are numbered there; go toward the bottom: "The presumption of innocence has relation to every fact that must be identified by the proof, that the defendants are guilty beyond all reasonable doubt [reading]. The COURT. Well, I have told them that it was dependent on that at every stage of the proceedings. Mr. MAYER. We think, your honor, that the manner in which we have presented the request is stronger than the request that you gave. Request No. 3, for instance, as to the Veeder meetings, is disregarded, and so all the requests that I have indicated by number, except those which you did give, we except to the not giving them, not as to the form, but the substance. I can, of course, take your honor's time going through them, but you have had them for some days and no doubt have read them. The COURT. Oh, yes; I have got them bound together and will see that they go into the record just as they are. Mr. PAYNE. I guess that covers all we want. The COURT. What is that? Mr. WILKERSON. I say there is a question whether by agreement an indictment may go to the jury. The COURT. I would suggest that you gentlemen have some printed copies made Mr. MILLER. Yes; we have copies. The COURT. You could not send those. Mr. MILLER. Has the Government got copies? Mr. WILKERSON. We have copies. Mr. MILLER. I don't know; I asked Mr. Wilkerson what the ruling was. It was my understanding; I don't know; I supposed it went, anyway. The COURT. I always supposed it did. Mr. MILLER. Well, let it go then. Mr. WILKERSON. All right. Mr. MILLER. We will raise no point on it, let it go. Mr. WILKERSON. We will send it in place of the original indictment, printed copies. The COURT. You may send the printed copy. Mr. MILLER. Yes; send the printed copies. Are those in type, Mr. Wilkerson? Mr. WILKERSON. We have 4,509 printed separately, and there are no italics or anything noted, it is just plain, straight print. Mr. MAYER. I understand that the requests we have tendered may go in the record. The COURT. Yes. Now, Mr. Miller, will you agree on these forms? Mr. MILLER (examining forms of verdict). This is a good one, "We, the jury find the defendants not guilty." "We the jury find the defendants not guilty" (naming them). "We the jury find the defendants guilty as charged in the indictment "-in manner and form, should that be? The COURT. No. Mr. MILLER. Not necessary. "We the jury find the defendants guilty as charged in the indictment and find the defendants not guilty." "We the jury find the defendants guilty as charged in the count of the indictment but not guilty as charged in the other counts, and we find the defendants not guilty." "We the jury find the defendants "-I take it that is all of them named there" guilty as charged in count of the indictment and not guilty as charged in the other counts." guilty as charged in the count of the indictment, not guilty as charged in the other counts, and we find the defendants guilty as charged in the indictment, and not guilty as charged in the other counts." count of the I don't know that that would fit anywhere, but I have no objection to it going in. (The following proceedings were then had in court:) The COURT. Gentlemen of the jury, there will be presented to you six forms of verdict which cover, as I look at it, every phase of the case; and in making up your verdict you will use that form which seems to you to conform to the evidence in the case. And there will be given to you copies of the indictment in printed form and the exhibits. Are the marshals here? (Marshals A. J. Calder, John Gilhooly, and George Giles were thereupon sworn by the clerk to take charge of the jury.) The COURT. The jury will not retire. The court will now stand adjourned until to-morrow morning at 10 o'clock. (Whereupon an adjournment was taken until Tuesday, March 26, A. D. 1912, at 10 o'clock a. m.) TUESDAY, MARCH 26, 1912-12 M. Pursuant to notice to counsel by the court further proceedings in this case were had on the day and hour above mentioned, as follows: The jury being present. The COURT. Gentlemen, have you agreed upon a verdict? The COURT. Take the verdict, Mr. Clerk. (The verdict was handed to the clerk by the foreman.) The COURT. Read the verdict. The CLERK (reading). “We, the jury, find the defendants not guilty. (Signed) Judd E. Harvey, E. J. Ryan, J. H. Edwards. William J. Thomas. Jacob Gleim, R. C. Bates, Thomas Scott, Asa Bannister, Adam D. Clow, H. I. Bucklin, B. H. Meyers, and C. H. Nare." The COURT. I presume the formal order will be entered that the defendants go hence without stay and the jury be formally discharged from further service. Mr. MILLER. I am quite sure the form of the judgment, whatever the proper judgment is upon a verdict of not guilty The COURT. There is no doubt but what the defendants in this case will have no further trouble in this case. The court will now stand adjourned until 10 o'clock to-morrow morning. Mr. VEEDER. I was also asked to present the figures which were compiled by Mr. J. F. Mueller, who was a witness in that case on behalf of the Government, and who compiled his figures from Government records. I have here two exhibits that were introduced in that case. These exhibits are numbered 1390 and 1393, so you can see the amount of evidence which was introduced in the case. There were exhibits even put in after these were put in. I will not undertake to discuss these figures. Maybe you would like to look at them. They are voluminous and they cover, espe cially Table No. 3, the purchases of live cattle by certain of the packers. Mr. ANDERSON (after examining tables). The second exhibit seems to relate entirely to the slaughter at Chicago. Were there other figures, do you happen to know? Mr. VEEDER. What is that, Mr. Anderson? Mr. ANDERSON. Were there figures, statements, and statistics offered in that trial tending to show a fixed percentage of slaughter, taking the buy of the country as a whole? Mr. VEEDER. I do not remember accurately, but I think not. think those figures were the basis upon which he testified. There were no end of exhibits introduced into that case. Mr. ANDERSON. That is all that I wanted to know. (The tables submitted by Mr. Veeder follow :) TABLE NO. 1. A. Statement showing estimated total fresh beef consumption in specified States compared with estimated combined fresh beef production in the eight cities named in statement B, during the calendar year 1909. |