Albuquerque citizen. [volume] (Albuquerque, N.M.) 1907-1909, 1908-09-10


paid by other shippers. and says:
1t is obvious from all this (and the
record otherwise bears out the state
menD that there was no evidence be-
fore the jury from which they would
have been justified in finding actual
knowledge on the part of the defen-
dant of the 1S-cent rate. The gov
ernment had introduced none such,
although it would not alter the case
or question here IL it had introduced
such proof, as the question was oy
the charge in effect Withdrawn from
and not submitted to the jury by the
trial court.
The real question is, did the de-
fendant intend to violate the law, Or
did it pay the scent rate in the non
est belief that 1t was the lawful rate?
Upon this issue all the testimony of
Bogardus found in the record between
pages 423 to 453, which was offered
and excluded, was of vital Importance,
as was also the proffered testimony of
Hollands, found on record, pages 462
to 465, which was also excluded by
the trial court,
The fundamental error into which
counsel for the government have fall
en- is due to the fact that they have
confused a possible single element of
proof with the ultimate faah to be
proven The real question II not as
stated by Observation-Disclosures ignor-
ance of a rate resulting from negli-
gence is a defense-or whether it is
necessary for The prosecution in
criminal case where criminal intent
is a necessary element to prove in the
first instance the existence of sucn
criminal intent by proving facts or
circumstances from which such Grim
inal intent-that is, knowingly or pur-
posely committing the act charged;
that is, knowingly or purposely taking
a rate less than the lawful rate
may be inferred.
In the making of such proof of
criminal intent 1t might be admissi-
Bile to show negligent conduct on the
part of the defendant but such proof
would not show, and indeed might not
even tend to show, the existence of
such criminal intent.
In short, there is no evidence in
this record that tends to prove actual
knowledge of the alleged lawful rate
by the defendant-the contrary is the
case, there is no evidence that tends
10 prove negligence on the part of
the defendant; the proof made and
the proffered proof of the defense
conclusively show a want of actual
knowledge and the exercise Of the
highest degree of care in an effort
TO ascertain the real rate. 1t, there
fore, appears that the whole argu-
ment of the government in this behalf
Is unwarranted by the record; the pc
titioners have very cunningly sought
to get this court to announce a rule
that has no application to the facts
proved in the case.
1t is charged that Judge Lands
really fined the Standard OIL company
of New Jersey and not the Standard
Oil company of Indiana, the real de-
fendant, and to substantiate this
charge the reply quotes from the de-
cision of Judge Lands, and says:
The real point is: Did the trial
court, in imposing punishment, take
into consideration the relation be-
tween the Standard Oil company of
New Jersey and the Standard Oil
company of Indiana, and did it base
its fine upon the wealth of the STAN
dard Oil company of New Jersey and
Is ability to pay. instead of upon the
wealth of the Standard Oil company
of Indiana and its ability to pay?
To determine this question, it does
not suffice for government counsel to
extract a few sentences from the trial
courts opinion and attempt TO argue
thcrefrom that this court mas griev-
ously erred in its understanding of
yxyh hat "a trfa hot
the enormous fine inflicted upon the
defendant was because of the owner
ship of its stock by the Standard oil
company of New Jersey, and because
of the financial standing of the latter
corporation, is beyond dispute when
the entire opinion of the trial court
is considered.
Regarding the g0vernment's request
that the case be certified to the su-
preme court, the reply says:
This court, having decided the case
pending before it and reversed and
remanded the case for a new trial,
and so having made up its mind and
determined the question involved, It
is submitted that the suggestion of
certification in a petition for rehear-
ing, as a ground thereof, is not a
proper one to be made or entertained.
The answer will probably be con-
sidered in the October term which
begins October 6. 1t is not usual for
the court to hear arguments on a pc
tition for rehearing and whether the
government will make an answer TO
the STANDARD or ask for oral argu-
ment IS not known.