Opinion of the Court.

gard to the garb in which such acts were clothed. In view of the general language of the statute and of the public policy which it manifested, there was no possibility of frustrating that policy by resorting to any disguise or subterfuge of form, since resort to reason rendered it impossible to escape by any indirection the prohibitions of the statute." United States v. American Tobacco Co., 221 U. S. 181, 31 Sup. Ct. 648, 55 L. Ed. 694. In what has been said it has been assumed that Wayman was the real and substantial owner of the patents. That scheme was his. That his purpose was merely to make money for himself by selling to the corporate defendants indulgences to sin against the -Sherman Act.

The government contends that this was not the real situation. In its view there is nothing before the court except an ordinary combination to raise and maintain wholesale and retail prices and to force all the makers and dealers in the country into it. Wayman, it says, was nothing more than the ordinary promoter. The patents served the purpose of the certificate of incorporation from New Jersey or Delaware used when the combination became a consolidation. We have not discussed this branch of the case. We will not. We refrain from doing so not because it would not be pertinent. It would. Ordinarily it would receive full consideraation. Unusual circumstances shown by the record make it inexpedient and even improper to do so, if the case can be disposed of without commenting upon that aspect of it.

[5] Some months after these proceedings were begun the grand jury of the United States for the Eastern District of Michigan returned indictments against many of the defendants. They were charged with violating the Sherman Law. The acts alleged against them there are the same which are made the ground of the equitable relief here asked for. The defendants have moved that further proceedings herein be put off until the criminal case has been finally disposed of, and that the taking of testimony be then re-opened. It is urged that the individual defendants should in justice to themselves [193] testify fully and freely. It is said that this they dare not now do. They fear that something to which

Opinion of the Court.

they swear in the civil proceeding may be used in the criminal to their hurt. This motion we cannot grant. The Sherman Act provides for both civil and criminal proceedings. The Attorney General must decide whether and when either or both shall be brought. To postpone finding an indictment until after a petition for an injunction had upon final hearing been granted or dismissed would be frequently, if not usually, to wait until after the period of limitations had expired. To refuse to decide the equity cause so long as the criminal charge had not been finally disposed of might leave the public to suffer for years from what the Attorney General believed to be a harmful interference with its rights and interests. The courts cannot, unless in exceptional cases, say that either must wait upon the other. A court of equity has a wide discretion. There may be circumstances which would justify its refusal finally to act until after the indictments had been tried. In our view such circumstances are not found here. The fact that many of the defendants are now under indictment makes it our duty to be careful not to say anything which might be used either to their prejudice or to that of the government in the impending criminal trial. Some minor questions affecting particular defendants are to be passed upon.

[6] The Colwell Lead Company says it is not engaged in interstate commerce. In our view it is. It makes its ware in New Jersey. It sends it to ware-rooms in New York City and in Worcester, Mass., and there sells it. Its trade extends over several states. It alleges that it had no part in any of the negotiations leading up to the formation of the scheme, that it did not execute a license agreement until some three weeks after the other corporate defendants, and that, then, it refused to bind itself to charge the resale prices. It was consulted through its president some time before any of the agreements were actually entered into or before their precise terms were definitely settled. He then gave a general approval of the plan. Neither he nor it appear to have done anything further until after the others had signed up.

Some months before the Standard Sanitary Manufacturing Company, which until May 4, 1910, owned the basic

Opinion of the Court.

automatic patent, had given the Colwell Company a revocable license to use the dredger. The latter wanted Wayman to renew the license. It apparently did not want it badly enough to be willing to bind itself to charge the uniform resale prices of the New York City plumbers to whom it sold a large part of the ware. Wayman finally agreed in writing that, if it would take a license, he would try to get from the commission of the corporate defendants leave to cut these prices whenever it found that maintaining them would seriously handicap it. If the commission would not let the Colwall Lead Company do so, the latter on 10 days' notice could terminate the agreement. It would appear that it became a party to the combination to an extent sufficient to entitle the government to injunctive relief against it.

[194] [7] The evidence shows that two of the individual defendants, namely, Bert O. Tilden and George W. Franzheim, secretaries of the Colwell Lead and the Wheeling Enameled Iron Companies, respectively, had no part in forming the combination. They did not do anything in connection with it, except to attest in their official characters papers executed by their corporations. As to them the petition should be dismissed. Against the other defendants, corporate and individual the government is entitled to injunctive relief substantially as prayed for. In view of the pendency of the criminal case, all characterization of what the defendants have done not necessary to the effectiveness of the decree should be omitted from it. The government may submit a draft of a decree to the counsel for the defendants. If an agreement cannot be speedily had, we will upon application fix an early day for its settlement.

GOFF, Circuit Judge (dissenting).

I cannot assent to the conclusion reached by the court in this opinion. The facts established by the testimony, considered in the light of the law applicable thereto, compel me to conclude that the allegations of the petition have not been sustained.

Syllabus.

STEERS ET AL. v. UNITED STATES.

(Circuit Court of Appeals, Sixth Circuit. December 5, 1911.)

[192 Fed. Rep., 1.]

GRAND JURY (§ 10)-SELECTION OF JURORS-FEDERAL COURTS.—In drawing a special grand jury in a Federal Circuit Court in Kentucky, the clerk, for the purpose of distributing the jurors as evenly as possible between the several counties from which they were drawn, followed the method of rejecting the names of all jurors drawn who resided in a particular county after the desired number from such county had been drawn, continuing the drawing until the desired number had been drawn from each county. By Rev. St. §§ 802, 805 (U. S. Comp. St. 1901, pp. 625, 626), it is provided that jurors shall be returned from such parts of the district as the court shall direct so as to be most favorable to an impartial trial, and that special juries when ordered shall be returned in the same manner and form as is required by the laws of the State. Ky. St. § 2243 (Russell's St. § 3066), provides for the drawing of juries in the State court by the judge. Held, that the mode pursued by the clerk was, at most, irregular, and not prejudicial, and not such a plain error as would be noticed by the Circuit Court of Appeals in the absence of an assignment of error thereon."

[Ed. Note. For other cases, see Grand Jury, Cent. Dig. § 27; Dec. Dig. § 10.] COMMERCE (8 33)-WHAT CONSTITUTES "INTERSTATE COMMERCE."A single shipment of a commodity, as tobacco, from one State into another to be marketed, constitutes interstate trade and commerce, within the meaning of Anti-Trust Act July 2, 1890, c. 647, § 1, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200).

[Ed. Note. For other cases, see Commerce, Dec. Dig. § 33.

For other definitions, see Words and Phrases, vol. 4, pp. 37243731.] MONOPOLIES (§ 12)-FEDERAL ANTI-TRUST ACT-ILLEGAL RESTRAINT OF INTERSTATE TRADE.-A direct and absolute restraint upon interstate trade and commerce bearing no reasonable relation to lawful means of accomplishing lawful ends is not relieved from criminal illegality under the Anti-Trust Act July 2, 1890, c. 647, § 1, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), because the volume of traffic affected was small.

[Ed. Note. For other cases, see Monopolies, Dec. Dig. § 12.]

@ Syllabus copyrighted, 1912, by West Publishing Company.

Syllabus.

[2] MONOPOLIES (§ 31)-FEDERAL ANTI-TRUST ACT-CONSPIRACY IN RESTRAINT OF TRADE-INDICTMENT.-An indictment for conspiracy to restrain interstate commerce in violation of Anti-Trust Act July 2, 1890, c. 647, § 1, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), considered, and held sufficient.

[Ed. Note. For other cases, see Monopolies, Dec. Dig § 31.] CRIMINAL LAW (§ 1043)-TRIAL-OBJECTION TO ADMISSION OF EVIDENCE. A general objection to the admission of evidence for which no ground is stated will not support an assignment of error in a Federal court.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2654-2655; Dec. Dig. § 1043.] CRIMINAL LAW (88 673, 1038)-TRIAL

EVIDENCE.-In a trial of a number of defendants for conspiracy, where items of evidence are necessarily admitted which at the time are competent against one defendant only, it is proper for the court to caution the jury as the trial proceeds as to the effect of such evidence, but its failure to do so, when not requested, is not reversible error.

[Ed. Note. For other cases, see Criminal Law, Dec. Dig. §§ 673, 1038.] CRIMINAL LAW (88 315, 423)-CRIMINAL PROSECUTION-TRIAL-EVIDENCE STATEMENTS OF CONSPIRATOR.-A Conspiracy proved to have been formed is presumed to have continued until its object was accomplished, and, on the trial of defendants charged with having conspired to prevent the shipment of certain tobacco in-interstate commerce, statements made by one of defendants while the tobacco was being withheld from shipment, at their instance, were admissible against them.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 748, 989-1001; Dec. Dig. §§ 315, 423.]

CRIMINAL LAW (§ 825)-TRIAL-INSTRUCTIONS.-Instructions in a prosecution for conspiracy, taken together, held not erroneous, in the absence of requests for more specific instructions on certain points.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2005; Dec. Dig. $ 825.]

COURTS (352)-FEDERAL COURTS-CONFORMITY TO STATE PRACTICE— CRIMINAL CASES.-The Federal conformity statute (Rev. St. § 914 [U. S. Comp. St. 1901, p. 684]), providing for conforming the procedure in the Federal courts to that in the State courts in civil actions at law, does not cover instructing the jury.

[Ed. Note. For other cases, see Courts, Dec. Dig. § 352.] Conformity of practice in common-law actions to that of State court, see notes to O'Connell v. Reed, 5 C. C. A. 594; Nederland Life Ins. Co. v. Hall, 27 C. C. A. 392.]