Omaha daily bee., 1911-12-22
Statement About Purchase Of Other
Companies Not Improper,
SEVERE BLOW TO THE DEFENSE
Rulings Favor Government on All
Material Points.
BUCKINGHAM SPEAKS FIRST
Attorney for Packers Denies All
Material Facts in Complaint ald
Says Defendants Are Public
BenefactOrs.

]
the Sherman law lost in the first sklr-
mish Of their long drawn out trial today
when United states District Judge Car.
penter overruled the motion OF the de-
fense to strike out counts two and three
of the indictment.
The court also ruled adversely on the
motion to have the jury instructed to dis
regard the allegation of the governm snt
counsel in the opening statement regard
ing the absorption of the Schwarzschtld
& Sulzberger company and the New York
Butchers Dressed Meat company by the
alleged packers combination
The court gave the ruling at the open
ing OF the session, and the fact that the
decision sustained the governments po-
sition on every material point was re-
garded as a severe blow to the defense.
brief Recess Taken.
After the decision of the court was an
nounced a brief recess was taken to give
the packers attorneys opportunity to de-
statements or allow the government to
proceed with its first witness.
In denying the motion OF the defense
Judge Carpenter said:
This indictment has been attacked by
If this prosecution were based solely on
counts two and three, which legally
charge the offense and describes in de-
tail the method by which it was worked
out by the defendants, q motion for dl-
rected verdict at this time could not pre-
vail
THE existence of and the use claimed
to have been made of the National Pack
ing company are merely evidentiary cir
cumstance possibly bearing on the crea-
tion or continuance of the alleged un-
lawful combination.
Summed up. the argument of the de-
fendants' counsel is not that the opening
statement of the government was too
narrow, but too broad. Because the dis
trict attorney outlined certain evidentiary
facts the government is not precluded
from proving others. .i.---s--rs-ii-s-ls : -s-
Second Motion Denied.
In denying the second motion Judge
Carpenter said:
TT is also urged that evidence of the
purchase by the defendant. T1lden, Of
shares Of the capital stock Of schwarzs-
child & sulzberger company and the New
York Butchers Dressed Meat company
should be excluded and that the jury be
instructed to disregard that portion Of
the governments opening which has to
do with that purchase.
1T is quite proper that the opening
statement should not only cover the ul-
innate facts, but advise the jury in some
measure Of the character, force and value
of the proof which is to be offered.
"The New York butchers transaction
was mentioned in the indictment; the
Schwarzschild & Sulzberger was not.
Whether both were or both were not
charged Is of no moment because In either
event proof of the transactions would
bear only on the purpose and intent OF
the defendants in entering into the al
legged unlawful combination.
THE motion is denied and exceptions
noted in behalf of all the defendants"
Attorneys for the packers decided to
make an opening statement before wit
nesses were called.
buckingham opens for Defense.
Attorney George T. Buckingham In the
first address in behalf OF the defendants
called attention TO the charge in the
Indictment which accused the defendant
packers of forming a combination in re-
straint of trade between 1907 and 1910
He pointed out that the supreme court OF
the United States recently had construed
restraint of trade" as meaning only
those restrictions which were undue and
unreasonable"
He said in part:
THE indictment covers only the period
from September, 1907, to September. 1910
and the combination must bo proved
within that time. Otherwise the govern
ment fails OF proof
THE defendants do not fix the pur
chase price OF cattle by agreement. The
purchase price is fixed by the market
conditions, which neither these defend
ants nor anyone controls or can cOntro.
and that purchase price had risen steadily
during these years.
The defendants do not fix and contrO
the sale prices Of fresh meats in the
markets Those meats are sold under
competitive conditions in the markets, In
direct competition with dozens and hun.
dreds of competitors. Nor are sale prices
Il meats by the packers 10 the meat deal.
ers inflated or excessive. Neither do the
packers reap enormous inflated profits.
I'VE will show that the defendants by
the best business methods and the great
than 10 per cent per year on their actua
money investment We will show thai
the public has not suffered an injury
but has reaped a great benefit by the
business operations of the defendants"