The news & observer., 1897-01-23
Officers Of the American To-
bacco Co. Must Answer
CHARGES OF CONSPIRACY
SUCH is THE DECISION OF JUDGE
FITZGERALD.
TIE Demurrer OVER-RULED
The indictments Were Filed on Com
plant of the National Tobacco
Company, Under the
Anti-Trus Law.

New York, Jan. 22.-Judge Fitzgerald,
in General Session to-day handed down
a decision overriding the demurrer to
the indictment for conspiracy against the
American Tobacco Company. The opin-
ion discusses generally the law touching
upon conspiracy by a corporation. The
defendants In the indictment are Of
ficers of the company. They are; James
Il. Duke, VIM. III. Butler, VIM. A. Mar
burg, Lewis Ginter, Geo Arents, Geo.
w. Gail, BENZ. n. Duke, Geo. w. Watts,
Josiah Brown and Charles G. Emery.
The indictments were filed on the COM
plaint of the officers of the National
Tobacco Company, who are dhe makers
of rival brand of cigarettse, and were
found under the antitrust law Of 1895.
By the decision of Judge Fitzgerald the
directors and officers must stand trial. At
the outset of the opinion Judge Fitzger-
aid writes: ''The indictment charges con-
spfracy, alleging that the defendants
were officers and agents of the Ameri-
can Tobacco Company, which company
manufactured the greater portion Of the
cigarettes vended in the United States
and that it was impossible for whole
salers and jobbers to carry ON their busi-
mess without dealing with the company;
and in order to monopolize the entire
business of making and vending cigar
cites the defendants unlawfIlly conspir-
ed to commit an act injurious to trade
and commerce."
In over-ruling the demurrers, Judge
Fitzgerald says that in the opinion of
the court individuals cannot shield them
selves from the consequences of wrong
ct,1
acts were corporate ones. The criminal
Inability of a corporation must be consid-
cred in a different manner from the civil
liability. Criminal intent was one of the
essential elements in a conspiracy.
'"There are some acts for which indict-
ments will lie against corporations.
These acts" writes the Judge, II
think, have been so far limited to acts
Of misfeasance and non-1nisfeasance. OF
course, upon proof of unlawful acts it
would not be held that all the members
composing the body corporate are crdmin-
ally liable. This association being law
full, no presumption cam arise against any
of them from the fact of such associa-
riOn. But if two or more or all Of them
enter into an unlawful agreement they
cannot be allowed to plead their lawful
association for certain purposes in bar
Of prosecution for unlawful combination.
ITO rule that the officers and agents Of
a corporation are relieved from individual
criminal liability for all they may do un-
der the color Of corporate acts would a
mount in many cases to a suspension OF
the law"
In conclusion the decision says: ''If
the proof in this case at bar should es-
tablish the allegations of the Indictment,
might not the refusal to sell to jobhers
and dealers except upon the required
conditions, be properly found to consti-
tute, menace, coerce and intimatton. And
If such methods or devices are resorted
TO by the defendants to restrain lawful
trade and commerce and create a monOp-
oily are they not guilty Of conspiracy