Newark evening star and Newark advertiser. [volume] (Newark, N.J.) 1909-1916, 1910-02-09
JUSTICE SWAYzE
CHARGES JURY IN
BEEF TRUST PROBE
Asks Indictments if Cold Storage
Is Found to Be Used to Boost
Prices of Food.
REFERS TO GRANARIES
In TIME OF PHARAOH
Storage of Necessities of Life
Not Inherently Wrong-Con-
spiracy Must Be Shown.

In a charge to the Hudson county
grand jury today Supreme Court JUS
tice Francis J. Swayze asked for
indictments If it is found that the plan
of cold storage of the food barons is
for the purpose of boosting the price
of foodstuffs.
He spoke of the concentration of a
vast population around New York and
charged the grand jury that If the evil
dence renders it probable that the OBJ
ject of accommodating foodstuffs and
holding it in cold storage is merely to
enhance the price to the public injury,
an Indictment would be proper.
This is Justice Swayze's charge in
fun: ~
The Charge.
Gentlemen of the grand jury-The
prosecutor has brought to my notice
the investigation that you have been
pursuing into the cold storage of food
in this county understand the inves-
tigation has led you to desire some in
structions as to the law regarding
criminal conspiracy. AS Chief Justice
Beasley said forty years ago, there is
perhaps no crime an exact definition
than the offense of conspiracy. He
added that in the nature of things, it
cannot be every collusion between two
or more persons to do an unlawful act,
or an Indifferent act by unlawful
means, which will constitute an offense
of public nature; for IL this were SO,
a large portion of the transactions
which in the ordinary case of litigation
between party and party come before
the courts would assume a criminal as
pect, in which the State would have an
interest After commenting on the
difficulty of distinguishing between
combinations which involve criminality
and those which do not, he said that
a combination will be an indictable
conspiracy, ~ whenever the end pro-
posed, or the means to be .en1ployed,
are of a, highly criminal character,
90 where they are such as indicate
great malice In the confederates. 90
or where deceit is to be used, the OBJ
iect in view being unlawful, or (D
where the confederacy, having no law
full aim, tends simply to the oppression
of individuals.
"At the time this opinion was deliv-
cred we had in this State statute
which made it a criminal conspiracy
to the public health or to trade or COM
merce. This act had been on the statute
hook at least since 1886, but in 1898 the
gentlemen who revised the crimes act
and the Legislature thought 1t wise to
drop, this section and to substitute one
couched in less precise and definite Ian
guage omitting any specific reference
TO n combination to commit an act in
iurious to the public health or to trade
or commerce. This indefinite legislation
Immediately proved unsatisfactory and
in the very next year, 1899, the old Sec
ton from the act of 1S46 was reenacted,
with certain omissions. Among the
words omitted were those which made
II a criminal conspiracy to combine TO
commit an act injurious to the public
health or TO trade or commerce. refer
To the history of this legislation for the
reason that 1t may be suggested. and
will, great force, that the fact tnat the
Lerislature. evidently having before 1t
the old act, chose to omit this provision,
js an indication that in the opinion or
the legislators a combination OF tnat
kind ought not to be criminal. Forcicle
as is the argument drawn from this
significant omission, 1t is not conclusive
Meaning of Conspiracy.
"The same act of 1899 limits a con-
sniracv to combination to commit
crime where the act of 1S46 mace IL d
conspiracy to combine to commit any
offense. But the Supreme Court mas
very recently decided in case Whlcn
certainly extends very much the scope
of the crime of conspiracy, that this
crime Is not limited to the acts pre-
scribed by the statute. The court has
said in so many words that where
the conspiracy results in mischief to
the public it seems that the indictment
will be sustained where neither the OBJ
ject nor the means are criminal and
an indictable conspiracy may be a
combination to accomplish an object
which is not criminal, by means which
are not criminal, where the public is
injuriously involved, or where the re-
suit would be either injury or oppres-
sion to Individuals This is the last
authoritative declaration of our courts.
and it is couched in language so broad
and sweeping that combination to
commit any act where the public is in
juriously involved or where the result
would be an injury to individuals,
would seem to be an indictable con-
spiracy. Whether or not any limita-
ton ought to be imposed on the gem
erality of this language, aside from
that imposed by the good sense of a
jury is not question in this case.
No doubt the public is injuriously in
volved where there is combination
the object of which is to raise the
price of articles of food Of prime neces-
sity.
"You will notice, however that under
this definition, broad as it is, it is
essential not only that there should be
a combination, but that that combi-
nation have for its object the injury
Of the public. or the injury or oppres-
sion of individuals. This is an essential
clement of the crime. for it is funda-
mental in the case of common law
crimes, such as this, that there should
be criminal intent. No man is
criminal. says the old legal MAXIM,