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riage through the Western district of Missouri was charged in the indictment or proved.

If the shipper's offense was complete in the state of Kansas, it may nevertheless have continued and have been committed in the Western district of Missouri also. It is not essential to a continuing crime that every element requisite to its commission in the second jurisdiction wherein it continues shall exist in the jurisdiction in which it is first committed. Larceny is a continuing crime. One who steals in one jurisdiction and carries the stolen property into another may be indicted, tried, and punished in the latter under statutes to that effect, notwithstanding the constitutional requirement that the accused shall be tried in the county or district in which the crime is committed, and this because the carrying into the second jurisdiction is a continuance of the effect of the original taking. Commonwealth v. Macloon, 101 Mass. 1, 5, 6, 100 Am. Dec. 89; People v. Burke, 11 Wend. (N. Y.) 129; Hemmaker v. State, 12 Mo. 453, 51 Am. Dec. 172; 2 Wharton on Conflict of Laws (3d Ed.) §§ 826, 826a. It is said that this rule is based on the legal assumption that where the property has been feloniously taken every act of removal may be regarded as a new taking and asportation. Commonwealth v. Uprichard, 3 Gray (Mass.) 434, 436, 63 Am. Dec. 762; State v. Smith, 66 Mo. 61, 62. But this assumption is only a legal fiction, and, whether made or not, the fact remains that the offense is complete where the felonious taking occurs, and the subsequent asportation to another county or state is not an essential ingredient of the crime in the first jurisdiction, while the felonious taking and its continuing effect are indispensable elements of the offense in the jurisdiction to which the stolen property is carried. Embezzlement is a continuing crime. It may be prosecuted and punished in any jurisdiction where there is liability and failure to account for and pay over the money. Richter (D. C.) 100 Fed. 295, 298; Commonwealth v. Parker, 165 Mass. 526, 43 N. E. 499; State v. Bailey, 36 N. E. 233, 236, 50 Ohio St. 636. But the offense is complete in the jurisdiction in which the original conversion is committed, and no subsequent acts in any other jurisdiction are essential elements thereof. The general principle that one who commits a criminal act in one county, state, or district may be held liable for its continuous operation in another to which its effect extends, is established by these and many other authorities, such as those involving the maintenance of a nuisance in one county which affects property in another (Bulwer's Case, 7 Co. 2b, 3b; 2 Hawk. c. 25, § 37; Com. Dig. "Action," N, 3, 11; Abbott, C. J., in King v. Burdette, 4 B. & Ald. 175, 176; Thompson v. Crocker, 9 Pick. [Mass.] 59; Stillman v. Mfg. Co., 3 Woodb. & Min. 538, Fed. Cas. No. 13,446) and those involving the publication of a libel in a newspaper in one jurisdiction which circulates in another (Commonwealth v. Blanding, 3 Pick. [Mass.] 304, 15 Am. Dec. 214), and yet in all these cases the offense may be complete in the jurisdiction in which it is first committed, and still be indictable and punishable in those to which its continuing operation and effect extend. A continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent

In re

the port of transhipment or of entry, the latter rate is required to be filed and published.

If carried under a joint through rate by virtue of a common control. management, or arrangement of the inland and ocean carriers, the joint rate is required to be filed and published.

5. COMMERCE-REBATES-INTERSTATE COMMERCE ACT NOT VIOLATIVE OF CON

STITUTION.

The amended interstate commerce act of 1887, thus construed, neither lays a tax or duty on articles exported from any state, nor gives a preference to the ports of one state over those of another, within the meaning of paragraph 5 of section 9 of article 1 of the Constitution, and it is not obnoxious thereto.

6. CARRIERS-REBATES-"DEVICE" OF ELKINS ACT IMMATERIAL-INDICTMENT SUFFICIENT WITHOUT PLEADING IT.

The giving or receiving of the rebate or concession, whereby property in interstate or foreign commerce is transported at less than the established rate, is the essence of the offense denounced by the pertinent paragraph of the Elkins act.

The “device" by which the concession or transportation is brought about is not an essential element of the crime, and it is unnecessary to plead it in an indictment.

The meaning of the clause "by any device whatever" in that paragraph is directly or indirectly, in any way whatever.

7. CRIMINAL LAW-INDICTMENT-REQUISITE AVERMENTS.

An indictment must set forth facts which the pleader claims constitute the transgression, and every essential element of it, with such clearness and certainty as (1) to advise the accused of the charge he has to meet, and to give him a fair opportunity to prepare his defense, (2) to enable him to avail himself of the judgment thereon in defense of another prosecution for the same offense, and (3) to qualify the court to determine whether or not the facts there stated are sufficient to support a conviction.

[Ed. Note. For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 180-182.]

8. CONTRACTS-LAWS READ INTO.

The laws upon the subject of a contract are read into and become a part thereof to the same extent as though they were written into its terms. [Ed. Note. For cases in point, see Cent. Dig. vol. 11, Contracts, § 750.] 9. CARRIERS-REBATES-CONTRACT TO MAINTAIN ESTABLISHED RATE INEFFECTIVE AFTER HIGHER RATE ESTABLISHED-NO DEFENSE TO CHARGE OF RECEIVING LESS THAN FILED AND PUBLISHED RATE.

A contract between a carrier and a shipper to transport the latter's goods in interstate or foreign commerce at the then established rate for a definite time is ineffective after a higher rate has been filed and published as required by law.

The time during which a rate different from the agreed rate is established by fling aud publishing is excepted from the term of such a contract by virtue of the national acts to regulate commerce which are a part thereof.

Such a contract constitutes no defense to a charge of giving or receiving a rebate or concession from the filed and published rate.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Carriers, § 94.] 10. CRIMINAL LAW-INTENT-SIMPLE PURPOSE TO DO FORBIDDEN ACT WHICH IS NOT MALUM IN SE IS SUFFICIENT.

The only criminal intent requisite to a conviction of an offense created by statute, which is not malum in se, is the purpose to do the act in violation of the statute. No moral turpitude or wicked intent is essential to a conviction of such a crime.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 22.1

(Syllabus by the Court.)

In Error to the District Court of the United States for the Western District of Missouri.

In the statement and opinion in these cases the Armour Packing Company's case alone will be treated, because the four cases were tried upon agreed statements, and their facts are so similar that the questions of law they present are identical.

The packing company was indicted and tried for, and was convicted of, a violation of the Elkins act to further regulate commerce of February 19, 1903 (chapter 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599]) in the District Court for the Western District of Missouri upon these agreed facts: The Chicago, Burlington & Quincy Railroad Company, a corporation, was a common carrier engaged in the transportation of property through the states of the nation and for export to foreign countries by rail over its own road and over other railroads under contracts and arrangements with connecting carriers from Kansas City, in the state of Kansas, into and through the Western district of Missouri, to the city of New York. The packing company was a corporation engaged at Kansas City, in the state of Kansas, in packing meat products and shipping them throughout the United States and to foreign countries. Its shipments to foreign countries were delivered to the Burlington company at Kansas City, were delivered by one of the Burlington company's connecting carriers to an ocean steamer at New York, and were handled exclusively by the carriers, rail and steamship, from the time they were delivered to the Burlington company at Kansas City until they were delivered to the shipper at the export destination. The shipment which is the subject of this prosecution was thus shipped, handled, and delivered.

From May 9, 1905, until August 6, 1905, tariffs and schedules and joint tariffs and schedules duly filed, published, and posted, showed that the proportion of the rate on provisions of the character described herein shipped as export shipments from Kansas City, Kan., to foreign countries, was 23 cents per 100 pounds from all points on the Mississippi river to New York.

On June 16, 1905, the proprietors of the Wilson line of ocean steamers agreed with the packing company to carry these provisions from New York to Christiania, Norway, for 19.93 cents per 100 pounds, and a copy of this contract was delivered to the Burlington company.

On June 17, 1905, the Burlington company agreed with the packing company to carry for it until December 31, 1905, products of this character shipped for export at the then filed and published rate, the proportional part of which from the Mississippi river to New York was 23 cents per 100 pounds. On August 6, 1905, the Burlington company and its connecting railway carriers filed with the Interstate Commerce Commission an amendment to their tariffs and schedules, which was duly published and posted, and which made a tariff or rate from Kansas City, Kan., to New York, for these products, the proportional part of which for their carriage from the Mississippi river to New York was 35 cents per 100 pounds.

Prior to August 6, 1905, shipments were made by the packing company for export and were carried by the Burlington company and its connecting carriers according to the terms of the contract of June 17, 1905, and at the then filed and published rate. After the amendment of the schedules of August 6, 1905, and on August 17. 1905, the packing company delivered at Kansas City, Kan., to the Burlington company, under the contract of June 17, 1905, for transportation to Christiania, Norway, by way of the latter's railroad and via railroads of its connecting carriers to New York, and thence by the Wilson line of steamships to Christiania, under the contract of the packing company with the owners of that line, 67 tierces of oleo oil, which weighed 29,365 pounds, and the Burlington company received, agreed to deliver this oil to the order of the packing company at Christiania, Norway, and issued to it a through bill of lading therefor for 52.93 cents per 100 pounds, which included the 19.93 cents per 100 pounds agreed by the packing company to be paid to the Wilson line, and left 33 cents per 100 pounds for the transportation from Kansas City, Kan., to New York. The Burlington company and its connecting railway carriers thereupon transported this oil over their railroads from Kansas City, Kan., through the Western district of Missouri,

to New York, where they delivered it to a steamship of the Wilson line. The packing company paid to the Burlington company the full 52.93 cents per 100 pounds for the entire carriage from Kansas City, Kan., to Christiania, Norway. This 52.93 cents per 100 pounds was made up so that the proportionate part of this rate for the carriage from the Mississippi river to New York was 23 cents per 100 pounds. The packing company did not at any time know how the rate was apportioned or made up or divided among the respective railway carriers or points, but it knew that the agreed steamship rate was 19.93 cents per 100 pounds, and hence that 33 cents per 100 pounds was the aggregate amount paid and received for the transportation of the property from Kansas City to New York, and it knew the filed, published, and posted rate for this product established by the amendment of August 6, 1905, the proportional part of which from the Mississippi river to New York was in fact 35 cents per 100 pounds.

The oleo oil was one of the products which the Burlington company agreed to carry, and which it did carry under its contract of June 17, 1905; "the defendant company shipper contending and insisting that said amendment increasing the tariff rate did not and could not abrogate or impair the terms of said contract." One of the connecting carriers objected to transporting this oil at the rate specified in this contract, but the Burlington company insisted that it should be so carried. The result was that the property was transported at a rate the proportional part of which for the carriage between the Mississippi river and New York was 12 cents per 100 pounds less than the part of the rate established by the amendment of August 6, 1905, which was proportionate to that part of the carriage. The packing company was indicted and tried for, and was convicted of, accepting and receiving this concession of 12 cents per 100 pounds in respect of the transportation of this oleo oil in foreign commerce by the Burlington company and its connecting carriers, whereby this property was transported from Kansas City to New York, through the Western district of Missouri, at a less rate than that named in the tariffs published and filed by the Burlington company and its connecting carriers.

Frank Hagerman and John C. Cowin, for plaintiff in error in each case (A. R. Urion, on the brief in No. 2,471, Henry Veeder, on the brief in No. 2,472, and M. W. Borders, on the brief in No. 2,473). A. S. Van Valkenburgh (Leslie J. Lyons, on the brief), for the United States.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court.

1. The shipper delivered its goods to the Burlington company, the carrier, obtained its through bill of lading from Kansas City to Christiania, Norway, received its concession, and paid the through rate, less than that named in the tariffs filed and published by the carriers, in the city of Kansas City, in the state of Kansas. By these acts the transportation of this property at this less rate by the Burlington company and its connecting carriers from Kansas City into and through the Western district of Missouri to New York was caused, but the carriage was conducted by the railroad companies alone.

Counsel for the shipper insist that the District Court of the Western district of Missouri was without jurisdiction of its offense, because its crime was not committed in that district, but was complete in the district of Kansas, and because no concession from that part of the rate filed and published which was proportionate to the car

riage through the Western district of Missouri was charged in the indictment or proved.

If the shipper's offense was complete in the state of Kansas, it may nevertheless have continued and have been committed in the Western district of Missouri also. It is not essential to a continuing crime that every element requisite to its commission in the second jurisdiction wherein it continues shall exist in the jurisdiction in which it is first committed. Larceny is a continuing crime. One who steals in one jurisdiction and carries the stolen property into another may be indicted, tried, and punished in the latter under statutes to that effect, notwithstanding the constitutional requirement that the accused shall be tried in the county or district in which the crime is committed, and this because the carrying into the second jurisdiction is a continuance of the effect of the original taking. Commonwealth v. Macloon, 101 Mass. 1, 5, 6, 100 Am. Dec. 89; People v. Burke, 11 Wend. (N. Y.) 129; Hemmaker v. State, 12 Mo. 453, 51 Am. Dec. 172; 2 Wharton on Conflict of Laws (3d Ed.) §§ 826, 826a. It is said that this rule is based on the legal assumption that where the property has been feloniously taken every act of removal may be regarded as a new taking and asportation. Commonwealth v. Uprichard, 3 Gray (Mass.) 434, 436, 63 Am. Dec. 762; State v. Smith, 66 Mo. 61, 62. But this assumption is only a legal fiction, and, whether made or not, the fact remains that the offense is complete where the felonious taking occurs, and the subsequent asportation to another county or state is not an essential ingredient of the crime in the first jurisdiction, while the felonious taking and its continuing effect are indispensable elements of the offense in the jurisdiction to which the stolen property is carried. Embezzlement is a continuing crime. It may be prosecuted and punished in any jurisdiction where there is liability and failure to account for and pay over the money. In re Richter (D. C.) 100 Fed. 295, 298; Commonwealth v. Parker, 165 Mass. 526, 43 N. E. 499; State v. Bailey, 36 N. E. 233, 236, 50 Ohio St. 636. But the offense is complete in the jurisdiction in which the original conversion is committed, and no subsequent acts in any other jurisdiction are essential elements thereof. The general principle that one who commits a criminal act in one county, state, or district may be held liable for its continuous operation in another to which its effect extends, is established by these and many other authorities, such as those involving the maintenance of a nuisance in one county which affects property in another (Bulwer's Case, 7 Co. 2b, 3b; 2 Hawk. c. 25, § 37; Com. Dig. "Action," N, 3, 11; Abbott, C. J., in King v. Burdette, 4 B. & Ald. 175, 176; Thompson v. Crocker, 9 Pick. [Mass.] 59; Stillman v. Mfg. Co., 3 Woodb. & Min. 538, Fed. Cas. No. 13,446) and those involving the publication of a libel in a newspaper in one jurisdiction which circulates in another (Commonwealth v. Blanding, 3 Pick. [Mass.] 304, 15 Am. Dec. 214), and yet in all these cases the offense may be complete in the jurisdiction in which it is first committed, and still be indictable and punishable in those to which its continuing operation and effect extend.

A continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent

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