1. The decision of the District Court in this case, setting
aside an indictment for violation of the Sherman Act, rests not
alone upon a construction of the statute, but also upon the
independent ground of the insufficiency of the indictment as a
pleading, and it is therefore not appealable directly to this Court
under the Criminal Appeals Act. P. 318 U. S.
2. Pursuant to the Act of May 9, 1942, the cause is remanded to
the Circuit Court of Appeals, which thereupon will have authority
to pass upon the construction of both the indictment and the
statute. P. 318 U. S.
Remanded to the C.C.A.
Appeal from a Judgment, 46 F. Supp.
, dismissing an indictment for violation of the Sherman
Page 318 U. S. 443
This is a direct appeal under the Criminal Appeals Act, 18
U.S.C. § 682, as amended by the Act of May 9, 1942, 56 Stat. 271,
from a judgment of the district court setting aside an indictment
under the Sherman Act. By the statute, our jurisdiction is
restricted to review of a decision or judgment based upon the
invalidity or construction of the statute on which the indictment
is founded. Included among the defendants are the commission firms
which receive and sell fat lambs on the Denver Livestock Exchange
and three packing companies which purchase fat lambs on the Denver
market for shipment interstate to their manufacturing plants.
The indictment charges that the defendants agreed among
themselves to purchase lambs only on the Exchange, and to abandon
the previously prevailing practice of making direct purchases from
producers in the country, for interstate shipment,
"thereby restraining the channels of distribution within the
Denver marketing area through which said fat lambs for eastbound
shipment move, and . . . restraining the interstate trade and
commerce described in this indictment, in violation of § 1 of the
It also alleges that the agreement or conspiracy among the
defendants is "in restraint of the hereinbefore described trade and
commerce in fat lambs among the several states of the United
States, and in violation of § 1" of the Sherman Act.
The district court dismissed the indictment on the ground that
the alleged agreement and practices under it are not in any way
shown to have affected the price of lambs or the amount of lambs
raised or produced, or to have lessened their flow in interstate
commerce. While its decision was rested in part upon the
construction of the Sherman Act, the court also relied on the
Page 318 U. S. 444
of the pleading, in that it failed to allege any injury to or
effect upon interstate commerce resulting from the alleged
agreement or conspiracy. It said:
"the indictment is defective in that it does not go far enough
in its charges to bring the agreement within any of the recognized
canons of construction of the Sherman Anti-Trust Act, because, as
stated before, there is no allegation that the defendants intended
to or in any way harmed anyone or affected the price of fat lambs,
the amount of them that could be sold, or the places where they
could be sold;"
"the government has gone beyond the extent and meaning of that
law as interpreted by the Supreme Court, for, as stated, there is
no allegation that anyone has been injured or the flow of
interstate commerce in any way affected."
46 F. Supp.
From this, we must take it that the court found that the general
allegations with respect to the effect of the alleged agreement on
commerce were not sufficiently specific. It thus placed its
decision, in part, at least, on the inadequacy of the allegations
of the indictment, which we have quoted, to charge that the
conspiracy or agreement affected commerce within the meaning of the
Sherman Act. These, we think, were rulings upon the sufficiency of
the indictment as a matter of pleading, the correctness of which
cannot, under the statute, be reviewed here on direct appeal from
the district court. And such an appeal to this Court does not lie
when the district court has considered the construction of the
statute, but has also rested its decision upon the independent
ground of a defect in the pleading. United States v.
Hastings, 296 U. S. 188
United States v. Halsey, Stuart & Co., 296 U.
; United States v. Borden Co.,
308 U. S. 188
308 U. S. 193
United States v. Wayne Pump Co., 317 U.
, and cases cited.
This practice was recognized and confirmed by the adoption of
the amendment of May 9, 1942, to the Criminal
Page 318 U. S. 445
Appeals Act. The amendment authorized the Government to appeal
to the circuit court of appeals from a decision of the district
court sustaining a demurrer to the indictment in any case "except
where a direct appeal to the Supreme Court of the United States is
provided by this Act," and provided that, where an appeal is taken
to the Supreme Court
"which, in the opinion of that Court, should have been taken to
a circuit court of appeals, . . . the Supreme Court . . . shall
remand the cause to the circuit court of appeals . . . which shall
then have jurisdiction to hear and determine the same as if the
appeal had been taken to that court in the first instance. . .
In urging the passage of this legislation, the Attorney General,
in his letter to the Speaker of the House of January 10, 1941,
pointed out that
"It not infrequently happens that a demurrer to an indictment is
sustained or a motion in arrest of judgment is allowed on grounds
other than the invalidity or construction of the statute upon which
the prosecution is based. United States v. Hastings,
296 U. S.
; United States v. Halsey, Stuart & Co.,
296 U. S.
He accordingly recommended the proposed amendment as the
appropriate means of securing appellate review in cases like those
cited cases which had laid down the principle that a direct appeal
to this Court is not authorized when the decision of the district
court rests in part on grounds independent of the invalidity or
construction of the statute on which the indictment is founded.
H.R.Rep. No. 45, 77th Cong. 1st Sess., p. 2; S.Rep. No. 868, 77th
Cong., 1st Sess., p. 2.
As we are without jurisdiction to entertain the appeal, we
remand the cause, in compliance with the Act of May 9, 1942, to the
Circuit Court of Appeals for the Tenth Circuit, which will have
authority to pass upon the construction both of the indictment and
Page 318 U. S. 446
MR. JUSTICE RUTLEDGE took no part in the consideration or
decision of this case.
MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and MR. JUSTICE MURPHY
think that the ruling of the district court was based on a
"construction" of the Sherman Act and that this Court therefore has
jurisdiction to review the judgment.
MR. JUSTICE JACKSON, concurring.
I agree with the dissenting Justices that the decision of the
District Court is "based" upon the construction of the Sherman Act.
The District Court has also drawn conclusions from the language of
the indictment which can no doubt be said to amount to a
construction of the indictment. But I do not think that the court's
construction of the indictment constitutes an independent ground of
decision such as this Court has held precludes its review on direct
However, one-half of the membership of the Court, as constituted
at the time this case was submitted, do not agree with this view,
which is certainly not free from doubt, and is based on inferences
from an oral and informal announcement of the District Court. In
connection with the difficult problems that come up as a result of
a dual appeal, we would be greatly aided if the District Courts, in
dismissing an indictment, would indicate in the order the ground,
and, if more than one, would separately state and number them. I am
confident that a request from the Government to do so would
generally be granted, and that to do so would be of assistance to
the Government in taking and to us in passing on appeals.
If the Court is to dispatch its business as an institution, some
accommodation of views is necessary, and, where no principle of
importance is at stake, there are times when an insistence upon a
division is not in the interests of the best administration of
Page 318 U. S. 447
Such a case I consider this to be. To persist in my dissent
would result either in affirmance of the judgment by an equally
divided Court or in a reargument. There is difference of opinion as
to whether, if we have jurisdiction, we may proceed beyond the
construction of the Act and review opinions about the indictment
which the lower court expressed, but did not rely upon as an
independent ground of decision. On that question, I reserve
If, upon reargument in this Court, it should be decided that our
review is limited to the correctness of the District Court's
construction of the Act, and that it erred in this respect, the
views which the District Court has expressed as to the sufficiency
of the allegations of the indictment would be likely to embarrass
the trial court in passing on offers of proof, admissibility of
evidence, motions going to the sufficiency of the evidence, and
other questions. It is not unlikely that the trial court would
regard the statements of the District Court about this indictment
as "the law of the case."
However the case may be disposed of, reargument seems to be in
order, and I believe that the practical advantages favor rearguing
it before the Circuit Court of Appeals, where there is no doubt
that all of the questions can be decided.
Under these circumstances, to persist in my dissent would seem a
captious insistence upon my reading of a District Court's informal
opinion as to which there is reasonable ground for difference.
I should not desire to appear committed to this case as a
precedent. I concur in the result only because it seems the most
sensible way out of our impasse in the immediate case.