lots, constituted a separate offense, although the freight bills were rendered and paid monthly. United States v. Standard Oil Co. of Indiana (Dist. Ct. of N. D. of Ill.), 155 Fed. 305. See also same case on demurrer, 148 Fed. 719. This ruling was reversed by the circuit court of appeals of the seventh circuit, the court holding that the gist of the offense was the receipt of he concession, irrespective of whether the property involved trainloads, carloads, or pounds, and that the transaction was not completed until the shipper received the rate different from the established rate. Standard Oil of Indiana, 164 Fed. 376 (1908). The court also held that the district court had erred in excluding evidence that the shipper had no knowledge of the public rate and could not ascertain the same by a construction of the tariff sheets. On the retrial of this case in the district court this ruling was followed; and as the government failed to prove that the tariffs were published at least in the office of the railroad company where the shipments were received, the departure by the shipper from the rates did not constitute an offense. It seems that the freight rates did not contain a classification of rates, but merely referred to the classification published by other parties and were subject to a change by such other parties. United States v. Standard Oil Co. of Indiana, 170 Fed. 988 (1909). This ruling as to the unit of offense was followed in United States v. Bunch, 165 Fed. 736 (Ark. D. Ct.), (1908), and in United States v. Sterns S. & L. Co., 165 Fed. 736 (D. Ct. of Mich., 1908).

But contra, see United States v. Vacuum Oil Co., 158 Fed. 536 (1908), district court of the western district of N. Y.

In the prosecution of a carrier, N. Y. C. & H. R. R. Co. v. United States, 212 U. S. 481, it was said by the supreme court that the offense of giving rebates is complete, when the carrier to whom the shipper has paid the full local rate pays over to the shipper upon a claim presented to him the amount of the rebate stipulated in the agreement under which the shipment was made.

§ 428. Prior contract and want of criminal intent no defense. It was held in the Armour Packing case by the supreme court that the acceptance of a rebate by a shipper under a prior contract is violative of the act, since the statute is read into the con

tract and becomes a part of it, and it is immaterial that the contract was taken in good faith under a claim of right. The only criminal intent requisite to the criminal offense created by statute, which is not molum in se, is the purpose to do an act in violation of the statute. No moral turpitude or wicked intent is essential to conviction.

On the other hand, it is proper to show that there was no intent to violate the act; that is, to do what was prohibited by the act. Thus, in the prosecution of a carrier it was held by the circuit court of appeals of the ninth circuit, A., T. & S. F. R. R. Co. v. United States (1909), 170 Fed. 250, reversing 163 Fed. 111, that in the prosecution of a carrier for giving a rebate, the intent of the carrier is the essence of the offense, and the departure from the published tariff rates must be willful; that is, the carrier had the right to show in defense that it had accepted in settlement various sums less than the established rate, and the claim of the shipper, that the cars had been loaded with the minimum amount, but that various amounts had been lost in transit, and that the carrier had not exacted freight on the amount so lost, was admissible as showing the absence of intent to violate the act.

The fact that the shipper who contracts for and receives a rebate in violation of the statute receives no benefit therefrom, does not relieve him from criminal liability; but the stockholder in a corporation which has accepted rebates, does not as such become personally subject to the penalties imposed by the statute. United States v. Wood et al., 145 Fed. 405 (D. C. of Pa.) (1906).

§ 429. Conspiracies in rebating.-Every agreement for rebates is in effect a conspiracy to violate the law prohibiting rebates. Prior to the restoration of the penalty of imprisonment, an effort was made to make agreements to give rebates punishable by imprisonment under the general conspiracy statute, section 5440 R. S. supra, § 94. But it was held in the southern district of New York by Holt, J., that such a prosecution was not sustainable under the conspiracy statute. United States v. Gailford et al., 146 Fed. 298 (1906). But where the persons charged with the offense are not limited to the giver and the receiver of the rebates, there is a basis for the charge of con

spiracy. Thomas v. United States, 156 Fed. 897 (1907), reversing United States v. Thomas, 145 Fed. 74, on the ground of an improper instruction as to presumption of innocence.

§ 430. What are rebates.-It has been held that the fact that a rebate is paid to one other than the shipper, was immaterial; but a payment which is bona fide a commission for obtaining business for the carrier, is not within the act. United States v. Delaware, etc. R. Co., 152 Fed. 269 (1907). A railroad company refunding to a shipper the elevator charges for transferring grain from trains to vessels on the lakes was held guilty of rebating, and it was no defense to the prosecution that other carriers did likewise and that competition necessitated the rebate. Chicago, M. & St. P. R. R. Co. v. United States, 162 Fed. 835, C. C. A. eighth circuit (1908), affirming 157 Fed. 84. The same court held that the railroad company was guilty of rebating in refunding elevator charges to consignees, where it had actual knowledge that the freight had been paid by these consignees, although the railroad company had not filed a schedule showing it had not absorbed the elevator charge as a part of its rate.

It was held in U. S. v. Philadelphia Ry. Co., 188 Fed. 484 (1911), E. D. of Penn., that the Elkins Act did not apply to a car-load shipped from Hamburg, Germany, destined as stated in the bill of lading to Philadelphia for transportation in bond to Alberta, Canada, and taken to its destination by continuous and uninterrupted transportation at the hands of carriers; there being no delivery or change of title, but the defendant carriers merely assisting in a continuous transportation from one country to another. These facts being submitted to the court the verdict was directed for the defendant railway company, which had been indicted for violation of the Elkins Act. See also supra § 145.

A refrigerating company, organized for the purpose of controlling the interstate business of a brewery company, having entered into a contract for rebates with certain railroads, was "a party interested in the traffic," and was therefore subject to the act. United States v. Milwaukee, etc., R. Co., 145 Fed. 1007 (1906). It was held in this case that it was unlawful for a corporation organized to control the interstate transportation of the brewery to demand and receive as a consideration for the routing of the brewery company's product over certain line of railroad a

concession equal to one-eighth or one-tenth of the published freight rates.

It was held by the court of appeals of the seventh circuit, C. & A. Railroad Co. v. United States, 156 Fed. 559 (1907), affirming 148 Fed. 646, and affirmed by a divided court in 212 U. S. 563, that the private tracks built by the owner of a packing plant on its own property, extending from the connection with the tracks of a belt line railroad to and around its buildings and used in loading cars for shipments, are not a part of the railroad system, but plant facilities, and the refunding by the railroad company which made and published a schedule of through rates, including the belt line cars, of one dollar per car to such packing company on its shipments, which it made and paid for at the schedule rate, on the ground that it was a payment for the use of its private tracks, was in effect a rebate.

The comprehensive scope of the penal provisions of the Elkins Act was illustrated in the affirmance by the circuit court of appeals of the third circuit, 188 Fed. 879 (1911), of the conviction of the Lehigh Valley Railroad, 184 Fed. 543, on the charge of an unlawful discrimination in making what purported to be a settlement to the Bethlehem Steel Company of demurrage charges. The court said that the demurrage was a proper terminal charge under the act, and when fixed by the rate schedule for a certain district these charges were binding upon the companies and shippers, and any departure therefrom constituted a misdemeanor. In this case it was claimed that there was a basis for a settlement, as the shipper had claimed that the demurrage charges collected by reason of certain exceptions were discriminatory as against them; but the court held that the only legal mode of correcting such discrimination, if it existed, was by proper notice or under authority from the Interstate Commerce Commission. The question, therefore, was submitted to the jury to determine whether the settlement was an honest one or a cover for discrimination; and as the jury, by its verdict, found it was not made in good faith the conviction was sustained.

8431. Requisities of indictment under the act.-An indictment under this act is sufficient if it states the offenses with sufficient particularity to fully advise the defendant of the crime charged, and to enable a conviction through it to be

pleaded in bar of another subsequent prosecution for the same offense. N. Y. C. & H. R. R. Co. v. United States, 212 U. S., supra.

It is not necessary to set out in an indictment against a shipper that the carrier's published rate was a reasonable one, nor set out the tariffs in full, it being sufficient to aver that a certain named rate was in force between designated points as shown by the tariffs. United States v. Standard Oil Co., 148 Fed. 719. It is insufficient to aver, however, that there was an arrangement between several carriers with connecting lines and that a lower total rate as shown by the public tariffs was a certain sum per one hundred pounds on a particular product, but that such product was transported by defendants at the lower rates, as it was not indicative of the existence of the joint through rate lower than the total local rates. See ruling on demurrer in Standard Oil Case, 148 Fed. 719, supra.

Prosecutions under this act are governed by the R. S. section 1045, as amended in 1876, limiting all prosecutions to three years in cases of misdemeanors. The state statutes have no application. United States v. Central of Vermont R. R., 157 Fed. 291 (Cir. Ct. of N. Y., 1907).

For sufficiency of allegations to charge the establishment of a joint tariff rate and discrimination therein, see U. S. v. Penn. R. Co., 153 Fed. 625 (1907), dist. court of New York. It was held in this case that the burden is on the government to show a common arrangement for a continuous carriage between the points mentioned in the filed joint tariff.

In U. S. v. Pomeroy (C. C. of N. Y., 1907), 152 Fed. 279, it was held that a judgment of conviction with sentence of fine was abated by the death of the convicted party after the judgment and before the fine was paid, and that the fine was not recoverable from his personal representative and the court wherein the judgment was rendered had jurisdiction to abate the judgment.