The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-11-29
MOTT ISN'T
At Least Attorney General Fail
ed to Prove Case.
Topeka Commission Men Given
"CIean Bill"
TAKEN FROM JURY.
Judge Dana Decides That Evl-
dence Was Lacking.
Charges Far Fetched and Lack
Charges Far Fetched and Lack
ing Substantially.

to the Jury by sustaining a motion to
dismiss at 1880 o'clock today and IN
structing the foreman to find the de-
PENDANT commission men not guilty.
The state rested at 1870 and HaZen &
Cav, defending attorneys Immediately
argued motion to dismiss the case on
the grounds that no cause for action
had been shown.
An awkward moment ensued when
Judge Dana sustained the motion dis
charging the defendants. Certain of
the commission men clapped their
hands and started to rush from the
court room. The court was compelled
to call for order and the return of the
defendants to their seats until a YER
dict had been made by the jury, who
had been excused during the argument.
In giving his opinion, Judge Dana
covered at some length the testimony
Of the state leading to his decision. The
court cited that he had allowed the
state the largest latitude in it's evil
dence in order to learn If possible what
effect certain transactions could have
on the real issue, that he had permit
ted acts prior to two years preceding
the filing of the present suit on De-
cember 16, 1909, to be introduced, and
that in no case did this testimony i'm
press him as it seemed to impress the
attorney general.
Evidence Too Weak.
"a good deal of the states testimony
shows no light whatever upon the
question in this case. Much of it tends
to show right the reverse of their al
legations" said the judge, and ended
by saying, What is there substantial.
even in the circumstantial element, to
go before the jury?
Gentlemen. I doubt if these far
fetched and isolated personal transact
tions constitute a substantial action
wherein the court could instruct d
such a case going to a jury asked to
convict these defendants in a criminal
action. I hope this court will ever be
prepared to judge fairly in these anti
trust cases, but I think that in this
class, the criminal class of cases. the
state should at least be expected to
show substantial evidence that law has
been violated"
In asking How can these isolated
transactions be in the least considered
to show combina tion?" Judge Dana
recited a number as introduced in evil
dence. He include both those of to-
day and yesterday.
Turned Estates Evidence
The state claimed a great coup to-
day by offering the testimony of Cord
E. Smith, commission man original
ly one of the defendants against whom
the case was dismissed this morning
and he became a state witness. He
old organization, the Topeka Fruit
Jobbers association. His teStim ony
for the state was much the same as
that of E. R. Hayes, who had been
secretary of the old company. 1t was
the contention of Mr.. Jackson that
the new company could be presumed
to have continued the business the
same as the old which was admittedly
illegal.
On cross examination of Mr. Smith,
u. I. HaZen brought out an indication
of what the defense would have been
If required. 1t was the testimony of
Smith that by the operation of this
brokerage company in Topeka, the
Kansas City brokers were cut out of
their profits because the Topeka men
could handle car load shipments. The
freight to Kansas City, % cents a hun
dred, also was saved and a better
grade of produce could be obtained
for the Kansas City people unloaded
their old stuff on the Topeka buyers.
He said the Topeka brokerage plan
saved from 10 to 20 per cent on the
cost of articles and also established
Topeka as a central distributing point
for Kansas, Oklahoma, parts of Colo
RADIO and Missouri and New Mexico
and that shipments had been made to
Minneapolis and points in Louisiana
and Tennessee.
Mr.. Smith further testified that the
brokerage company under examina-
ton had long since discontinued bust
ness when the stockholders got into
a wrangle over a consignment of lem
ons which Manager Burrell Collins
had ordered against the advice of some
of them. A loss of $4,000 had been
the cure of the company. Messina
lemons was the order and no demand
was made for them.
Mr.. Jackson, however, established
the point that the brokerage COM
pany since the suit was brought has
continued as the Collins Brokerage
company and that the manager was
simply left to conduct the business.
By Mr.. Smith he further showed that
Hazen & Cav had been employed at
the organization of the new company
to legalize it and that Mr.. Cav had
advised the discrimination of keep
ing minutes or making out price lists.
In place, he said, he thought the adj
carry them out by agreement and not
by records.
Ear Fetched,' Contention.
Freeman Sar6ou was called by the
state today to tell of 433 cases of
peaches he had bought from Geo.
Whiteker at Is cents a crate for the
purpose of canning. The peaches
were worth, in marketable condition,
$1.0O a crate said Mr.. Sardou, but they
had been in cold storage several weeks
and were over ripe This transaction
was argued by the state to mean that
Whiteker had stored the peaches to
keep up the market price Judge
Dana called the contention most far
fetched" The old cases of ]. A.
Murphree of Oklahoma, and his wat
ermelons and several potato deals be-
tween farmers and commission men
were recited with discredit to the
commission men in a, business way but
not showing a combination in that
they showed a different price had been
offered by different dealers.
Bert Green Nof the Green grocery,
testified that when he wanted con-
signment of grapes for leader" the
commission men would not meet the
Kansas City price plus freight, but
that when he shipped from Kansas
City himself, they imm ediately cut
below him. But Mr.. Green admitted