is playing; nor is it necessary in order to be bound by the acts of his associates that each member of a conspiracy shall know all the other participants therein; nor is it requisite that simultaneous action be had for those who come on later, and cooperate in the common effort to obtain the unlawful results, to become parties thereto and assume responsibility for all that has been done before. Lefco v. United States, 3 Cir., 74 F.2d 66.
Objection is made by the Empire Cap Mfg. Co., D. J. Wasserstrom and David Fleider that the bill indicted the Empire Hat & Cap Mfg. Co., whereas, in truth and in fact the real name of the defendant is Empire Cap Mfg. Co. and that the Grand Jury has failed to indict the manufacturer under its own corporate name. This contention cannot be raised by demurrer but may only be raised by plea in abatement. Filiatreau v. United States, 6 Cir., 14 F.2d 659. On a demurrer the facts stated in the indictment are admitted. In United States v. Fawcett, 3 Cir., 115 F.2d 764, 132 A.L.R. 404, the court held that a misnomer was a matter of form and could be properly amended, and accordingly, aside from being improperly raised under these pleadings, this circuit has permitted the amendment of names improperly pleaded in an indictment, and counsel for the government advises that such a petition is presently pending.
Accordingly, each and every demurrer and motion to quash filed by the several defendants in this case are denied.
Motions for Bills of Particulars.
There have been filed seven motions for bills of particulars on behalf of virtually all of the defendants in the case, and all of them with the exception of that filed by the unions and union agents make request solely that the terms and conditions of the so-called informal bids be incorporated in a bill of particulars to be filed by the United States Attorney. Whether or not the government should be required to furnish the terms of the "informal bids" is a mere corollary of the contentions in the demurrers that the "informal bids" were not bids, but were mere information. The authorities are unanimous to the effect that the granting or refusing of a bill of particulars is within the sound discretion of the court, and unless there is an abuse of discretion, its action in refusing or allowing a bill of particulars will not be reviewed on appeal. Dunlop v. United States, 165 U.S. 486, 17 S. Ct. 375, 41 L. Ed. 799; Rosen v. United States, 161 U.S. 29, 16 S. Ct. 434, 480, 40 L. Ed. 606.
In discussing defendants' demurrers, it has already been shown that defendants are limited to matters appearing on the face of the indictment, and that the terms of documents not included in the indictment cannot be considered. It seems to avoid this dilemma defendants now attempt to incorporate the terms of the document as part of the indictment. However, even if the terms of the request for bids were set out in a bill of particulars, it would not incorporate them into the original indictment, so as to form a basis for demurrer. Dunlop v. United States, supra.
The motions with respect to having the terms of the Request for Bids set out in a bill of particulars was as indicated above included in all of the various motions made by the defendants, and that of the unions made the additional request that the terms of the bill of particulars be made a part of the bill of indictment. It is alleged in the indictment that the Requests were mailed to the manufacturer by the Philadelphia Quartermaster Depot and that each manufacturer submitted bids in response thereto (Paragraphs 13, 16, 19 and 22 of the indictment). They are therefore well aware of the terms of the Request for Bids, and it follows that the basic principle that defendants may not obtain matters already within their knowledge really disposes of these motions. Then, too, the courts do not require that the tenor of a document of this type be pleaded as in United States v. Grunberg, C.C., 131 F. 137, and in United States v. Winslow, D.C., 195 F. 578, 582, as the terms of the document will properly form a part of the government's proof at trial.
The greater part of the unions' motion, though seeking what it terms a bill of particulars, is an obvious attempt to force the government to reveal its evidence in advance of trial; it demands a copy of all writings, the substance of all conversations and oral statements, an exact description of all of the acts alleged to have been done, or agreed upon in the formation and course of the conspiracy, and these facts are to be accompanied by a statement of where, when, and how, each writing, conversation or act occurred, and by and for whom it was done. This part of the motion seeks no clarification of the issues, no information concerning the nature or character of the cause of action, no attempt to elicit data relevant to allegations of ultimate facts, nothing but evidence, pure and simple, is demanded, and this the courts have never permitted to be done. United States v. Garsson, D.C., 291 F. 646; Sawyer v. United States, 8 Cir., 89 F.2d 139, 140, 141; Mulloney v. United States, 1 Cir., 79 F.2d 566; Rubio v. United States, 9 Cir., 22 F.2d 766, 767, wherein the court says: "To require the government to set forth every act tending to connect each of the parties charged with the conspiracy, and every act committed by each of the parties in furtherance of the object of the conspiracy, would be to require it to make a complete discovery of its entire case. Such is not the office or function of a bill of particulars". In Page Steel & Wire Co. v. Blair Engineering Co., 3 Cir., 22 F.2d 403, 406, 407, certiorari denied 276 U.S. 623, 48 S. Ct. 303, 72 L. Ed. 737, the Court of Appeals for this Circuit denied a request for bill of particulars, which among other things sought the names of persons and their connection with the agreement and the times when certain events took place, saying at page 407 of 22 F.2d: "In the absence of statute, a bill of particulars cannot be made to serve as interrogatories to elicit evidence or the names of plaintiff's witnesses".
Accordingly, all of the motions filed by the defendants requesting bills of particulars are denied and the government's motion to amend the indictment is allowed.
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