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COMMONWEALTH vs. PAUL GIACOMAZZA & another.
An indictment for murder, taken with a bill of particulars furnished by the Commonwealth, sufficiently apprised the defendant of the nature and substantial facts of the offence charged; the defendant was not entitled as of right to further particulars stating minutiae of the alleged offence or disclosing all the material evidence upon which the Commonwealth intended to rely.
There was no error in the denial of a motion by one of several defendants jointly indicated that he be furnished with a transcript of the evidence given before the grand jury and a copy of an alleged confession of a codefendant.
wrist and back had an effect on him which, by reason of certain physical infirmities, he was unable to withstand, justified the further finding that the shooting was the proximate cause of his death nearly two months later.
A finding that two defendants indicted for murder shot a filling station attendant late in the evening was warranted on the testimony of a third defendant who had pleaded guilty to being an accessory after the fact to the crime, corroborated in some particulars by other evidence.
Testimony of a statement made by one of several defendants in the absence of the others was properly admitted at a criminal trial of the defendants together where the rights of the other defendants were safeguarded by express instructions to the jury that the testimony could not be considered as against them.
It was within the discretion of the judge at a criminal trial of several defendants to allow one of them to change his plea to guilty in the presence of the jury.
A general exception by one of two defendants at a criminal trial to the admission of evidence competent against his codefendant must be overruled.
In the circumstances, a statement given to the police by one who at a subsequent criminal trial changed his plea to guilty and testified for the Commonwealth against codefendants was not improperly admitted in evidence when offered by the Commonwealth as bearing upon his credibility after the cross-examination of such witness during which the statement was used.
No error appeared at a murder trial in the introduction of certain properly verified bullets and weapons.
There was no error at a murder trial in the admission in evidence of a composite photograph showing a bullet fired by a firearms expert through a weapon involved in the case and a bullet removed from the body of the deceased.
No abuse of discretion at a criminal trial was shown in allowing a medical expert for the Commonwealth to testify as to matters forming part of its case in chief after the defendant had rested, or in allowing the District Attorney to put a leading question to a medical expert in direct examination.
No error nor abuse of discretion appeared in the denial of a motion for a new trial of an indictment for murder based on the grounds that a verdict of guilty was against the law, the evidence and the weight of the evidence; nor did this court, upon an examination of the entire case under G. L. (Ter. Ed.) c. 278, Section 33E, as amended by St. 1939, c. 341, consider that justice required a new trial.
INDICTMENT, found and returned on May 20, 1941.
The case was tried before Williams, J.
H. S. Avery, for the defendant Giacomazza.
M. J. Reardon, for the defendant Nickerson.
RONAN, J. Giacomazza and Nickerson have been convicted of murder upon a trial of an indictment charging them and one Lenehan with the commission of the crime, but Lenehan did not go to trial upon this indictment. He also was indicted as an accessory after the fact. Both indictments were tried together until Lenehan, toward the end of the Commonwealth's case, pleaded guilty and then testified in behalf of the Commonwealth. Giacomazza and Nickerson, hereinafter referred to as the defendants, have appealed and have alleged various assignments of error.
One Thomas, an attendant at a gasoline filling station in Melrose, was shot at about 11:30 o'clock on the night of September 9, 1940, by two men who entered the station to rob him. His right wrist was fractured by a thirty-two caliber bullet which was fired from an automatic pistol by one who stood in front of a desk at which Thomas was seated when found by the police. He was also shot in the back by a bullet discharged from a revolver which was fired by one who stood near the door of the toilet. The bandits escaped without taking the money changer which Thomas wore attached to a belt. Shortly after the shooting Thomas telephoned to the police. They arrived within a few minutes. Thomas's revolver was on the desk where he sat. It had not been fired. The money changer was also on the desk. It was covered with blood. There were blood spots upon the desk, on the floor near the desk, and on the wall under the telephone. Thomas was removed to the hospital where he died on October 30, 1940. The bullet that had fractured the wrist was found by the police upon the floor of the filling station. They also found the cartridge shell of this bullet. The revolver bullet was removed from the body of Thomas after his death. These two bullets and the cartridge shell were exhibits at the trial.
stopped on account of the traffic lights; he intended to turn to his left to go to Malden. Giacomazza ordered him to go straight ahead, and after he proceeded a short distance Giacomazza ordered him to stop and wait for them. Giacomazza had an automatic pistol. Both defendants left the automobile and proceeded toward the filling station. Lenehan, who remained in the automobile, heard two shots and started the motor of the automobile. In a few minutes, both defendants appeared, Giacomazza having an automatic pistol in his hand and Nickerson a revolver. There was a smell of burnt powder which apparently came from the weapons. Lenehan was told to go ahead as they had shot a man when he refused to give them his money. Lenehan had gone but a short distance when the two defendants left the automobile at a railroad underpass and disappeared. Lenehan then continued to operate his automobile but his supply of gasoline was exhausted before he had gone very far. Miss Cadigan, a nurse, while on her way home from work, saw him pushing his automobile and with her automobile pushed Lenehan's automobile to two filling stations, which were closed, and then took him in her automobile to enable him to get some gasoline. She innocently drove him to the station where Thomas had been shot, but a police officer who knew her but did not know Lenehan said the station was closed as a man had been shot. She finally drove him to a station where he secured some gasoline and where she left him.
over the downstream side of the bridge. Lenehan later pointed out to the police where the bundle was thrown from the bridge. A diver subsequently found a forty-five caliber automatic pistol and the barrel and frame of a thirty-two caliber revolver at about the place that Lenehan had indicated. This barrel and frame were introduced at the trial. The ballistic experts for both the Commonwealth and the defendants testified that the appearance of the bullet taken from the body of Thomas was consistent with its having been discharged from this barrel.
The defendants contend that there were various errors of law committed in the course of the trial, but they rely principally upon their contention that the Commonwealth has not shown that the death of Thomas was caused by the shooting and that, if it was, then the evidence was insufficient to prove that either defendant was involved in the murder.
The first assignment of error claimed by each of the defendants was to the denial of his motion for further particulars. The indictment alleged that the defendants on September 9, 1940, at Melrose, did assault and beat Thomas with intent to kill and murder him and that by such assault and beating did kill and murder Thomas. In answer to motions for particulars the Commonwealth specified that the alleged crime was committed at the Shell Filling Station in Melrose, by the use of firearms, and that Thomas died at the Melrose Hospital on October 30, 1940, at about 7:25 P.M. The judge further ordered that counsel be furnished with a copy of the hospital record. The motions for particulars sought information as to the exact location in the building where the crime was committed, a description of the weapon used by any defendant, the nature of the assault, the number, type and location of the wounds inflicted upon Thomas, the cause of his death, what acts the defendants committed, and various other matters as to the most minute details of the crime.
The indictment was in the form prescribed by G. L. (Ter. Ed.) c. 277, Section 79. It was sufficient properly to charge the defendants with the commission of murder in the first degree.
Commonwealth v. Jordan, 207 Mass. 259, 267. Commonwealth v. DiStasio, 294 Mass. 273, 279. Commonwealth v. Bartolini, 299 Mass. 503, 509. The defendants were entitled to particulars as a matter of right only if the indictment did not fully, plainly, substantially and formally describe the crime or if such particulars were necessary in order to enable the defendants to prepare their defence or to give them and the court reasonable knowledge of the nature and the grounds of the offence. Commonwealth v. Ellis, 207 Mass. 572, 576. Commonwealth v. Anderson, 245 Mass. 177, 184. Commonwealth v. Hayes, ante, 21. Commonwealth v. Mannos, ante, 94. The indictment, construed with the bill of particulars, set forth the material and essential facts of the alleged crime so definitely and concretely that the defendants could not fail to understand the conduct upon their part that the Commonwealth charged constituted the offence. The bill of particulars should not be made to perform the functions of answers to a set of interrogatories nor employed for the purpose of compelling a disclosure by the Commonwealth of all the material evidence upon which it intended to rely for a conviction. Commonwealth v. Lammi, 310 Mass. 159. Commonwealth v. Hayes, ante, 21. Commonwealth v. Mannos, ante, 94. The defendants had secured all the benefit they were entitled to as a matter of right from the bill of particulars already filed by the Commonwealth, and whether further particulars should be furnished was a matter resting in the sound discretion of the trial judge. The defendants' assignments of error to the denial of their motions for further particulars are without merit. Commonwealth v. Anderson, 245 Mass. 177. Commonwealth v. St. John, 261 Mass. 510. Commonwealth v. Lombardo, 271 Mass. 41. Commonwealth v. Bartolini, 299 Mass. 503. Commonwealth v. Martin, 304 Mass. 320. Dolan v. Commonwealth, 304 Mass. 325.
The second assignment of the defendant Giacomazza is to the denial of a motion seeking, among other things, that he be furnished with a transcript of the evidence presented to the grand jury and a copy of a confession made by Lenehan.
The judge granted the remaining portions of this motion by ordering the district attorney to permit an inspection by the defendants' experts of all weapons and bullets that the Commonwealth alleges were used by either defendant in the commission of the crime, and by ordering that copies of the report of the autopsy or the report of any medical examiner of any examination made of Thomas be furnished by the district attorney to counsel for the defendants. The defendants were also to have copies of the hospital record of Thomas. There is no statutory provision requiring the district attorney to furnish the defendants with a transcript of the evidence given before the grand jury, or to give the defendants a copy of the confession. This defendant cites no authority in support of the motion. In this Commonwealth the law is settled adversely to the defendant's contention. Commonwealth v. Jordan, 207 Mass. 259, 265. Commonwealth v. Goldberg, 212 Mass. 88, 91. Commonwealth v. Gettigan, 252 Mass. 450, 464. Commonwealth v. Gedzium, 261 Mass. 299, 309. Commonwealth v. Bartolini, 299 Mass. 503, 507.
The third assignment of error of Giacomazza and the second assignment of Nickerson are based upon the denial of their motions for directed verdicts of not guilty. The defendants contend that the Commonwealth has not proved that Thomas died as a result of the shooting and, second, that if he died in consequence thereof, then the evidence is insufficient to prove that the murder was committed by them.
proceeded toward the front of the body, without damaging any organ, until it finally lodged on the inside of the abdominal wall, where it caused an abscess to form which at the time of the autopsy contained eight ounces of pus. According to the attending physician, the condition of the wounds was such that after the first two weeks he did not anticipate any further trouble from them. In his opinion, the strain caused by the wounds resulted in his "gradual petering out, his increasing disability until he finally died," and the bullets had started him on a down grade "to such an extent that he was unable to come back." The hospital record described the cause of death as due to coronary thrombosis, arteriosclerosis and gunshot wounds of right forearm and left back. The medical experts for the Commonwealth attributed the death of Thomas to the shooting, which started a series of events that progressed uninterruptedly until it brought about his death. On the other hand, the experts for the defendants were of the opinion that the results due to the shooting had spent their force long before his death and that his demise was due entirely to natural causes which arose from the physical ailments with which he was afflicted prior to the shooting. It was for the jury to say whether the relation between cause and effect had been proved between the shooting and the death. They could warrantably find upon all the testimony that the shooting generated a destructive force upon one so handicapped by physical infirmities that he was unable to withstand the ravages of such a force, and that the infliction of the wounds was the proximate cause of the death. If such a finding were made, the shooting as matter of law was the cause of death. "If a person inflicts a wound with a deadly weapon in such manner as to put life in jeopardy, and death follows as a consequence of this felonious and wicked act, it does not alter its nature or diminish its criminality to prove that other causes coperated in producing the fatal result." Commonwealth v. Hackett, 2 Allen, 136, 142. Commonwealth v. M'Pike, 3 Cush. 181. Commonwealth v. Fox, 7 Gray 585, 586. Commonwealth v. Randall, 260 Mass. 303.
The defendants contend that the evidence was insufficient to prove that they were the persons who committed the assault upon Thomas. If the jury believed the testimony of Lenehan, they could come to no conclusion other than that the defendants shot Thomas. Lenehan was an accomplice and the jury were so instructed. Although a conviction may be had in this Commonwealth upon the uncorroborated testimony of an accomplice, Commonwealth v. Holmes, 127 Mass. 424; Commonwealth v. Leventhal, 236 Mass. 516; Commonwealth v. DiStasio, 294 Mass. 273; Commonwealth v. Lammi, 310 Mass. 159, the judge instructed the jury, as is frequently done, that they should carefully scrutinize the testimony of Lenehan. Commonwealth v. Bishop, 165 Mass. 148. Commonwealth v. Phelps, 192 Mass. 591. Commonwealth v. Leger, 264 Mass. 217.
afternoon and not upon the night of the crime. Indeed, the defendants do not contend that Lenehan was not in the vicinity of the filling station at about the time Thomas was shot. They did not deny that Lenehan was implicated in the crime, but urged the jury to find that others than themselves were with him. It is clear without a further review of the evidence that verdicts of not guilty could not have been directed. Commonwealth v. Snyder, 282 Mass. 401. Commonwealth v. Bartolini, 299 Mass. 503. Commonwealth v. Green, 302 Mass. 547.
The fifth assignment of error of Giacomazza and the third assignment of Nickerson are based upon the admission of the testimony of Manookian that Lenehan had told him that Nickerson and Giacomazza had instructed Lenehan to stop his automobile a short distance from the filling station; that both Nickerson and Giacomazza then left Lenehan's automobile; that they then returned to the automobile and told Lenehan they had shot a man and to drive away from the scene, which Lenehan did. Before this evidence was introduced, the judge instructed the jury that the evidence could not be considered as against Giacomazza or Nickerson, but that it could be considered only against Lenehan. This ruling was correct. Commonwealth v. Borasky, 214 Mass. 313. Commonwealth v. Millen, 289 Mass. 441. The effect to be given to a statement by one defendant outside of court in the absence of the others was also fully explained to the jury in the instructions, and they were specifically told that such a statement by one defendant could not be considered against any other defendant. The evidence when admitted was competent against Lenehan, who was then on trial with the two remaining defendants. The rights of these two defendants were safeguarded by the express instructions given before the evidence was introduced and later in the charge to the jury. It must be assumed that the jury followed the instructions of the judge and disregarded this testimony as against these defendants. Commonwealth v. Cline, 213 Mass. 225. Commonwealth v. Morrison, 252 Mass. 116. Commonwealth v. Capalbo, 308 Mass. 376.
The sixth assignment of error of Giacomazza and the fifth assignment of Nickerson challenge the action of the judge in permitting Lenehan, in the presence of the jury and during the trial, to retract his plea of not guilty and to enter a plea of guilty to the indictment charging him with being an accessory after the fact to the murder of Thomas. The defendants contend that they were thereby prejudiced. Whether the plea of Lenehan was accepted in the presence or absence of the jury, the fact that he had pleaded guilty could hardly have been kept from the jury. Of course, the jury could have been instructed that they need not further consider the indictment against Lenehan, but such a course might lead to speculation upon the part of the jury which might influence them for or against the two remaining defendants. In view of the subsequent appearance of Lenehan as a witness for the Commonwealth, it was to be expected that his transition from defendant to witness would be attacked upon cross-examination and an attempt would be made to impugn his credibility upon the ground that some advantage would accrue to him by pleading guilty and testifying as a witness for the Commonwealth. In fact, both these courses were pursued at the trial. The decision to accept the plea in the presence of the jury was within the discretion of the judge. He instructed the jury that they were entitled to know that the prosecution against Lenehan had terminated by a plea of guilty but that his plea was not to be considered in any way as evidence against these two defendants, and they should dismiss from their minds any thought that the plea might create as to the truth of the facts alleged in the indictment charging these defendants with murder. These assignments of error are untenable. Commonwealth v. Thompson, 99 Mass. 444. Commonwealth v. Bishop, 165 Mass. 148. Commonwealth v. Borasky, 214 Mass. 313. Commonwealth v. Fuller, 260 Mass. 329. Commonwealth v. Millen, 289 Mass. 441.
this statement was used by the Commonwealth simply to refresh the recollection of Lenehan and that it did not thereby become competent evidence. The statement was first offered by the district attorney at the close of the cross-examination of Lenehan by counsel for both defendants. The judge then excluded the statement because, as he stated, it had not been used in cross-examination and the witness had not been contradicted by anything purporting to be contained in the statement. The judge then inquired if counsel intended to argue that Lenehan's testimony was a recent fabrication, and one of the counsel replied that he did not intend to argue that it was more recent than the date of the statement. The ruling excluding the statement at this stage of the trial was right. Capodilupo v. F. W. Stock & Sons, 237 Mass. 550. Renwick v. Eastern Massachusetts Street Railway, 275 Mass. 145. Ouellette v. Chapman, 284 Mass. 363. Shear v. Rogoff, 288 Mass. 357. The district attorney then used the statement to refresh the recollection of Lenehan as to a statement made by Nickerson in reference to using the toilet in the filling station, and counsel for Nickerson cross-examined Lenehan concerning this incident. We need not decide whether the statement or a portion of it could have then been shown to the jury to determine whether the recollection of the witness could have been refreshed by what he had been shown in the statement by the district attorney, because neither party requested that any portion of it should be inspected by the jury. Dugan v. Mahoney, 11 Allen 572. Commonwealth v. Haley, 13 Allen 587. Commonwealth v. Jeffs, 132 Mass. 5.
The cross-examination of Lenehan was resumed by counsel for Nickerson. This examination covered a broad scope concerning several matters contained in the statement. Various portions of the statement were quoted and furnished the basis for questions put to the witness. Counsel for Giacomazza conferred with counsel for Nickerson while the latter conducted this cross-examination, and made no objection. The judge, as shown by the record, understood that counsel for both defendants were acting in concert.
The purpose of this cross-examination was not to refresh the recollection of Lenehan. It was an attempt to show discrepancies between this statement and his testimony. At the close of this cross-examination the judge admitted the statement and instructed the jury that it was not evidence of the truth of anything that was contained therein, but that they might consider it as bearing upon the credibility of Lenehan. Nickerson took no exception to this ruling and the statement, therefore, became a part of the evidence at the trial. It could not have been excluded upon the objection of a codefendant. The point could properly have been raised by the codefendant by a request that the judge instruct the jury that the statement was not admissible against him. A general exception by one party to the admission of evidence that is competent for any purpose against another party then on trial cannot be sustained. If the excepting party believed that the evidence was inadmissible as to him, then he should have specifically requested that the evidence be so limited as not to apply to him. Williams v. Taunton, 125 Mass. 34. Produce Exchange Trust Co. v. Bieberbach, 176 Mass. 577. Solomon v. Dabrowski, 295 Mass. 358. Curtin v. Benjamin, 305 Mass. 489. Commonwealth v. Connolly, 308 Mass. 481.
Nickerson had said that he desired to go to the toilet when they were at an open air theatre. The statement made no mention of Nickerson making any such remark while at the theatre, but it did disclose that Nickerson made some mention of the toilet when he left the automobile just before the shooting, although it also appears from the statement itself that Nickerson made no mention of the toilet until, according to the testimony of Lenehan, he told him two weeks after the shooting. It is unnecessary to compare further Lenehan's testimony with his statement because we cannot, in determining the admissibility of the statement, deal merely with contradictions and ignore the nature and purport of the cross-examination of Lenehan, the course and atmosphere of the trial, and the position he took at the trial. He had pleaded guilty to being an accessory after the murder of Thomas, but he had not been sentenced. He still stood charged with the murder of Thomas in the indictment upon which the two defendants were on trial. Not only was this indictment pending against him, but Lenehan and the two defendants had been jointly indicted shortly before the trial for an assault with intent to murder Thomas. No one would hesitate to inquire if the testimony of such a witness was not the product of the circumstances in which he found himself; and when contradictions appeared which might readily lead one to believe that his testimony was fabricated to suit better his purpose as a witness for the Commonwealth, it should in these circumstances be open to the Commonwealth to show that his testimony was unaffected by his change from a defendant to a witness -- an incident which counsel for Giacomazza describes in his brief as "stage-play." We are of opinion that, at the time the statement was admitted, and without passing upon the reasons stated by the judge for its admission, enough appears from the record to give rise to a reasonable inference by the jury that material portions of his testimony were a recent invention, or that he had put himself in such a situation that he was prompted to testify in a particular way, and that there was no reversible error in admitting the statement. Commonwealth v. Jenkins, 10 Gray 485.
Clark v. Fletcher, 1 Allen, 53. Griffin v. Boston, 188 Mass. 475. Commonwealth v. Tucker, 189 Mass. 457. Commonwealth v. Marshall, 211 Mass. 86. Commonwealth v. Retkovitz, 222 Mass. 245. Walsh v. Wyman Lunch Co. 244 Mass. 407. Commonwealth v. Hoyt, 279 Mass. 400.
The eighth assignment of error of Giacomazza and the sixth assignment of Nickerson are to the admission in evidence of the bullet and shell found at the filling station after the shooting. The ninth assignment of Giacomazza and the seventh of Nickerson are based upon the admission in evidence of Thomas's revolver, which was found by the police upon the desk at the filling station. The tenth assignment of Giacomazza and the eighth of Nickerson attack the admission in evidence of the bullet that was removed from the body of Thomas. The fourteenth assignment of Giacomazza and the twelfth of Nickerson challenge the introduction in evidence of the barrel and frame of the revolver that were found in the Charles River. This barrel and frame could have been found to have been dropped into the river by Nickerson. It is enough to say, without discussing each of these exhibits, that there was testimony showing the custody of each from the time it was found by the police, the medical examiner, or the diver, as the case may be, until it was produced at the trial. We cannot say that any of these articles had not been properly verified before it was introduced in evidence. There was no error in the ruling of the judge in admitting them in evidence. Articles found at the scene of a crime or in the home of a defendant, or which can be traced to the possession of a defendant and are material to an issue, have been frequently admitted in evidence. Commonwealth v. Tibbetts, 157 Mass. 519. Commonwealth v. Best, 180 Mass. 492. Commonwealth v. Retkovitz, 222 Mass. 245. Commonwealth v. Russ, 232 Mass. 58. Commonwealth v. Gangi, 243 Mass. 341.
destroyed the little blemishes which were in the barrel due to a slightly imperfect cutting tool and are present in all firearms, but that the marks of the rifling in the inside of a barrel of a revolver of this manufacture would not be changed by its immersion in water for five months. Subject to exceptions, he was permitted to testify that he was of the opinion from his tests, studies and examinations that the bullet that came from the body of Thomas could have been fired through the revolver barrel that was found in the river, and that it was consistent that this bullet could have been so fired. He then gave detailed reasons for his opinion. He further testified that he photographed a bullet that was fired through this barrel and superimposed a photograph of that bullet over a photograph of the bullet that had come from the body of Thomas, making a composite photograph so that a comparison could be easily made of both bullets. This composite photograph was then introduced in evidence over the exceptions of the defendants. The admission of this oral testimony and the photograph is the basis of the eleventh, twelfth and thirteenth assignments of error of Giacomazza and the ninth, tenth and eleventh assignments of error of Nickerson. The opinion of the expert was properly admitted. Commonwealth v. Best, 180 Mass. 492. Commonwealth v. Millen, 290 Mass. 406. The judge could find that the photograph was a fair representation of the bullets and that it might aid the jury in understanding the issues. It was for the jury to determine what weight they should give to it. We perceive no error in the ruling admitting the photograph. Blair v. Pelham, 118 Mass. 420. De Forge v. New York, New Haven & Hartford Railroad, 178 Mass. 59. Commonwealth v. Tucker, 189 Mass. 457. Howe v. Boston, ante, 278.
The fourth assignment of error of Nickerson attacks a ruling prohibiting him from inquiring of the witness Manookian if the police had questioned him concerning a murder committed in Everett. The ruling was right in excluding a matter collateral to any issue then on trial. Commonwealth v. McDermott, 255 Mass. 575, 580. Commonwealth v. Lammi, 310 Mass. 159, 163.
The thirteenth assignment of error of the defendant Nickerson is to a question put by the Commonwealth to a medical expert, called by this defendant, as to whether it would be necessary for the medical examiner to examine the hospital records if the attending physician was present at the autopsy conducted by the medical examiner and gave the latter all the information that he had about the case. The objection is that there was no evidence that the attending physician gave the medical examiner the said information. The answer was that it was not necessary if the attending physician conveyed to the medical examiner all that was contained in the hospital records. It is hard to see how this defendant was harmed when the answer itself was made expressly conditional upon the possession of the information which the medical examiner did not have. Moreover, there was testimony that the attending physician was present at the autopsy and gave his diagnosis of the case to the medical examiner. The ruling was free from reversible error. Arnold v. Harrington Cutlery Co. 189 Mass. 547. Taylor v. Creeley, 257 Mass. 21, 27. Sullivan v. Brabason, 264 Mass. 276, 288.
The fifteenth assignment of error of Giacomazza and the fourteenth assignment of Nickerson challenge the ruling of the judge permitting a medical expert to testify to matters in chief after the defendants had rested. The order in which evidence may be introduced is a matter of discretion. It is plain there was no error. Commonwealth v. Hogan, 249 Mass. 555. Commonwealth v. Wood, 302 Mass. 265. Commonwealth v. Cohan, 307 Mass. 179.
There is nothing in the sixteenth assignment of error of Giacomazza relative to the action of the judge in permitting a leading question to be put by the Commonwealth in direct examination of a medical expert. There was no abuse of discretion. Commonwealth v. Dorr, 216 Mass. 314. Commonwealth v. Simpson, 300 Mass. 45.
the weight of the evidence and against the law. The defendants introduced no new evidence at the hearing upon the motions but merely reargued the same matters that they urged before the jury. The whole case is here for our determination of the law and the evidence. G. L. (Ter. Ed.) c. 278, Section 33E, as amended. We have examined the entire record with care and have fully considered all the contentions made by the defendants. The material facts have already been stated in discussing the denial of the motions for directed verdicts. The evidence amply supports findings that each of these two defendants shot Thomas and that his death resulted from the shooting. We perceive no reversible errors of law. Consequently, we are of opinion that justice does not require a new trial.

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1. By petitioners' basing-point system of pricing in their sales of glucose, their product was sold at delivered prices computed by adding to a base price at Chicago the published freight tariff from Chicago to the delivery points, even though deliveries were in fact made from their Kansas City factory as well as from their Chicago factory. On shipments from Kansas City, the delivered price to the purchaser thus depended not only on the base price plus the actual freight from Kansas City, but also upon the difference between the actual freight paid and the freight rate from Chicago.
(A) The price discriminations resulting from petitioners' basing-point system violated § 2(a) of the Clayton Act, as amended. Pp. 324 U. S. 732, 324 U. S. 737.
(a) It is immaterial that there was no discrimination between buyers at the same points of delivery. P. 324 U. S. 734.
(b) There is nothing in the legislative history of the Clayton Act or the amendatory Robinson-Patman Act which confines their application to discriminations between buyers at the same destination. P. 324 U. S. 734.
(c) The contention that basing-point systems were well known prior to the enactment of the Robinson-Patman Act and were considered by Congress to be legal, and that their legality should be sustained in the absence of a clear command to the contrary, is rejected. P. 324 U. S. 734.
(d) Maple Flooring Assn. v. United States, 268 U. S. 563, and Cement Manufacturers Assn. v. United States, 268 U. S. 588, distinguished. P. 324 U. S. 735.
(B) The findings and the evidence support the Federal Trade Commission's determination that petitioners' discriminations in price have the effect on competition which brings the discriminations within the prohibition of § 2(a) of the Act. P. 324 U. S. 738.
(a) Under § 2(a), discriminations need not in fact have had a "substantially" adverse effect on competition; it is sufficient that they "may" have that effect. P. 324 U. S. 738.
(b) The weight to be attributed to the facts proven or stipulated, and the inferences to be drawn from them, are for the Commission to determine, not the courts. P. 324 U. S. 739.
2. Petitioners also violated § 2(a) of the Clayton Act, as amended, by permitting certain favored customers to secure options for the purchase of glucose, and to take delivery at the former lower prices, for periods longer than those usually permitted to other customers, and by permitting certain tank wagon customers to book orders at the lower prices charged for tank car deliveries and to take deliveries by tank wagon over extended periods of time. P. 324 U. S. 740.
(a) Even assuming that the practices prohibited by § 2(a) are discriminations in price, and not in the terms and conditions of sale other than price, the present discriminations in the terms of sale operated to permit the favored customers to purchase at a lower price than other customers, so that their only practical effect was to establish discriminations in price, precisely the evil at which the statute was aimed. P. 324 U. S. 740.
(b) Section 2(a) applies to indirect as well as direct discriminations in price. P. 324 U. S. 740.
(c) Petitioners failed to sustain the burden of showing that the price discriminations were granted for the purpose of meeting the "equally low" prices of competitors and that they were therefore excepted from the prohibition of § 2(a) of the Clayton Act by the proviso of subsection (b) of § 2 of that Act. P. 324 U. S. 741.
(d) The stipulated facts support the Commission's finding that the practices in question have the effect on competition which brings them within the prohibition of the Act. P. 324 U. S. 741.
3. The price discriminations which resulted from petitioners' allowance of discounts to certain favored purchasers of gluten feed and meal, byproducts of petitioners' refining of corn, and allowance of discounts to certain favored purchasers of starch and starch products, violated § 2(a). P. 324 U. S. 742.
(a) The statute does not require that the discriminations must in fact have harmed competition, but only that there is a reasonable possibility that they "may" have such an effect. P. 324 U. S. 742.
(b) From the evidence, it was permissible for the Commission to infer that these discriminatory allowances were a substantial threat to competition. P. 324 U. S. 742.
4. Petitioners' arrangement with the Curtiss Company for advertising dextrose on terms not proportionally accorded other purchasers violated § 2(e) of the Clayton Act. P. 324 U. S. 743.
(a) The arrangement was made with the Curtiss Company as a "purchaser" within the meaning of the Act. The statute does not require that the discrimination in favor of one purchaser against another shall be provided for in a purchase contract or be required by it. It is enough if the discrimination be made in favor of one who is a purchaser and denied to another purchaser or other purchasers of the commodity. P. 324 U. S. 743.
(b) The Curtiss Company, which purchased dextrose from petitioners and converted it with other ingredients into candy which it sold, was a purchaser of a commodity bought for "resale," after "processing," within the meaning of the Act. P. 324 U. S. 744.
(c) The evidence shows that the discrimination in favor of the Curtiss Company was a discrimination against sales in interstate commerce. P. 324 U. S. 745.
(d) The advertising furnished by petitioners was a service or facility "connected with the processing . . . sale, or offering for sale" of the commodity purchased by the Curtiss Company upon terms not accorded to other purchasers. P. 324 U. S. 745.
Certiorari, 323 U.S. 706, to review a judgment sustaining an order of the Federal Trade Commission.
of glucose. They sell only at delivered prices, computed by adding to a base price at Chicago the published freight tariff from Chicago to the several points of delivery, even though deliveries are in fact made from their factory at Kansas City as well as from their Chicago factory. Consequently there is included in the delivered price on shipments from Kansas City an amount of "freight" which usually does not correspond to freight actually paid by petitioners.
The Federal Trade Commission instituted this proceeding under § 11 of the Clayton Act, c. 323, 38 Stat. 730, 15 U.S.C. § 21, charging that petitioners' use of this single basing point system resulted in discriminations in price between different purchasers of the glucose, and violated § 2(a) of the Act, as amended by § 1 of the Robinson-Patman Act, c. 592, 49 Stat. 1526, 15 U.S.C. § 13(a). The complaint also charged petitioners with other discriminations in prices, or in services rendered to favored customers, which will presently be stated in detail, all in violation of § 2(a) or § 2(e) of the Clayton Act, as amended.
"(a) . . . it shall be unlawful for any person engaged in commerce . . . either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, . . . where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered. . . . "
After hearings at which much of the evidence was stipulated, the Commission made its findings of fact. It concluded that petitioners had violated § 2 of the Clayton Act, as amended, and ordered them to cease and desist from such violations. On petition to review the Commission's order, the Circuit Court of Appeals for the Seventh Circuit sustained the order, except in particulars not material here. 144 F.2d 211.
We granted certiorari, 323 U.S. 706, because the questions involved are of importance in the administration of the Clayton Act in view of the widespread use of basing point price systems. The principal questions for decision are whether, when shipments are made from Kansas City, petitioners' basing point system results in discriminations in price between different purchasers of glucose within the meaning of § 2(a) and, if so, whether there is support in the evidence for the finding of the Commission that these discriminations have the effect on competition defined by that section. Further questions are raised as to whether the other discriminations charged violate § 2(a) and § 2(e).
having a lower freight rate from Kansas City than from Chicago, the delivered price includes unearned or "phantom" freight, to the extent of the difference in freight rates. Conversely, when the freight from Kansas City to the point of delivery is more than that from Chicago, petitioners must "absorb" freight upon shipments from Kansas City, to the extent of the difference in freight.
in the particular candy. Manufacturers who pay unearned or phantom freight under petitioners' basing point system necessarily pay relatively higher costs for their raw material than do those manufacturers whose location with relation to the basing point is such that they are able to purchase at the base price plus only the freight actually paid. The Commission found that the payment of these increased prices imposed by the basing point system "may . . . diminish" the manufacturers' ability to compete with those buyers at lower prices.
First. Section 2(a) of the Clayton Act, as amended, makes it unlawful for any person "either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality. . . ." The statute permits differentials "which make only due allowance for differences in the costs of manufacture, sale, or delivery. . . ."
Petitioners' pricing system results inevitably in systematic price discriminations, since the prices they receive upon deliveries from Kansas City bear relation to factors other than actual costs of production or delivery. As in the case of the twelve cities selected by the Commission for illustrative purposes, the freight actually paid by petitioners in making deliveries usually varies from the freight factor from Chicago, used in computing the delivered price. When the actual freight is the lesser of the two, petitioners charge and collect unearned or phantom freight; when it is the greater, petitioners absorb the excess freight, which they pay but do not include in the computation of their delivered price.
In either event, on shipments from Kansas City, the delivered price to the purchaser depends not only on the base price plus the actual freight from Kansas City, but also upon the difference between the actual freight paid and the freight rate from Chicago which is included in the delivered price. This difference also results in varying net prices to petitioners at their factory at Kansas City, according to the destination of the glucose. The factory net varies according as petitioners collect phantom freight or absorb freight, and in each case in the amount of this freight differential. [Footnote 1] The price discriminations resulting from this systematic inclusion of the freight differential in computing the delivered price are not specifically permitted by the statute. Hence, they are unlawful, unless, as petitioners argue, there is an implicit exception to the statute for such a basing point system.
Petitioners point out that there is no discrimination under their basing point system between buyers at the same points of delivery, and urge that the prohibition of § 2(a) is directed only at price discriminations between buyers at the same delivery points. There is nothing in the words of the statute to support such a distinction, since the statute is not couched in terms of locality. And its purpose to prevent injuries to competition through price discriminations would preclude any such distinction, not required by its language. The purchasers of glucose from petitioners are found to be in competition with each other, even though they are in different localities. The injury to the competition of purchasers in different localities is no less harmful than if they were in the same city.
We find nothing in the legislative history of the Clayton or Robinson-Patman Acts to support the suggested distinction. It is true that § 3 of the Robinson-Patman Act, 15 U.S.C. § 13a, incorporating the Borah-Van Nuys Bill, S. 4171, 74th Cong., 2d Sess., imposes criminal penalties for selling goods "in any part of the United States at prices lower than those exacted . . . elsewhere in the United States for the purpose of destroying competition. . . ." But this section does not restrict the operation of the prohibitions, with civil sanctions, of the Robinson-Patman amendments to § 2(a) of the Clayton Act. This was specifically pointed out by the Conference Report on the Robinson-Patman Act. [Footnote 2] H.Rep. No. 2951, 74th Cong., 2d Sess., p. 8.
Petitioners further contend that basing point systems were well known prior to the enactment of the Robinson-Patman Act, and were considered by Congress to be legal. From this, petitioners conclude that they remained legal in the absence of a clear command to the contrary. Cf.
Parker v. Motor Boat Sales, 314 U. S. 244; Helvering v. Griffiths, 318 U. S. 371. But we think that the premise falls, and with it the conclusion, whatever it might be if the premise were valid.
In support of the legality of basing point systems, petitioners rely on Maple Flooring Assn. v. United States, 268 U. S. 563, 268 U. S. 570, and Cement Manufacturers Protective Assn. v. United States, 268 U. S. 588, 268 U. S. 597. But these were suits to restrain violations of the Sherman Act, and did not involve the prohibition of the Clayton Act upon discriminations in price. The only question for decision in those cases was whether there was a concerted price-fixing scheme among competing sellers, accomplished in part by their adoption of a uniform basing point system; in fact, no prohibited concert of action was found.
In any event, the basing point systems involved in those cases were quite unlike that used by petitioners. In the Maple Flooring case, supra, the single basing point was so close to most of the points of production as to result in but trivial freight variances, and the defendants in that case were willing to sell on a f.o.b. mill basis whenever the purchaser so requested. In the Cement case, supra, the defendants used a multiple basing point system, with a basing point at or near each point of production. Under this system, any manufacturer, in order to compete in the territory closer freightwise to another, would absorb freight by adjusting his mill price to make his delivered price as low as that of his competitors. Under this system, the delivered price for any locality was determined by the nearest basing point. We have no occasion to decide whether a basing point system such as that in the Cement case is permissible under the Clayton Act, in view of the provisions of § 2(b), permitting reductions in price in order to meet a competitor's equally low price. Cf. Federal Trade Commission v. A. E. Staley Mfg. Co., post, p. 324 U. S. 746.
there was no settled construction of the Clayton Act in the federal courts contrary to that now urged by the Commission, as was the case with the measures involved in Helvering v. Griffiths, supra. Nor was there any settled administrative construction to the contrary. In fact, in 1924, in the only decision involving the problem, the Federal Trade Commission, after extensive investigation and hearings, ordered the United States Steel Corporation and its subsidiaries to cease and desist from the sales of their rolled steel products on the "Pittsburgh-Plus" price system. 8 F.T.C. 1. The Commission held that the use of a single basing point at Pittsburgh for steel plants over the country was a violation of § 2 of the Clayton Act, as well as § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, as they then read. The respondents in that case sought no review of the Commission's order, and filed with the Commission a formal statement of intended compliance with it.
Petitioners also rely on the failure of the Commission to make further orders against basing point systems in the period from 1924 to the passage of the Robinson-Patman Act in 1936. The Commission undertook no further proceedings, because of difficulties of enforcement which it attributed to the exemption provisions of § 2 and to decisions of the lower federal courts in Clayton Act cases. Instead, it pressed for clarifying amendments to the Act. See the Commission's Final Report on the Chain Store Investigation (1936), Sen.Doc. No. 4, 74th Cong., 1st Sess., pp. 89-90, 96-97. The Robinson-Patman Act was adopted in response to the Commission's recommendation that defects in § 2 be remedied and its prohibition of price discrimination strengthened.
Finally, petitioners argue that Congress, by the rejection of a provision of the Robinson-Patman Bill which would have in effect prohibited all basing point systems, has indicated its intention to sanction all such systems.
This provision, as reported to the House by the Committee on the Judiciary, would have defined "price," as used in § 2 of the Clayton Act, as meaning "the amount received by the vendor after deducting actual freight or cost of other transportation, if any, allowed or defrayed by the vendor."
Such a drastic change in existing pricing systems as would have been effected by the proposed amendment engendered opposition, which finally led to the withdrawal of the provision by the House Committee on the Judiciary. 80 Cong.Rec. 8102, 8140, 8224. We think this legislative history indicates only that Congress was unwilling to require f.o.b. factory pricing, and thus to make all uniform delivered price systems and all basing point systems illegal per se. On the contrary, we think that it left the legality of such systems to be determined accordingly as they might be within the reach of § 2(a), as enacted, and its more restricted prohibitions of discriminations in delivered prices.
We conclude that the discriminations involved in petitioners' pricing system are within the prohibition of the Act. We pass to the question whether these discriminations had the prescribed effect on competition.
"effect . . . may be substantially to lessen competition . . . in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them. . . ."
Petitioners insist that the Commission's findings, based upon the facts stipulated, do not support its conclusion that petitioners' discriminations have the prescribed effect.
It is to be observed that § 2(a) does not require a finding that the discriminations in price have in fact had an adverse effect on competition. The statute is designed to reach such discriminations "in their incipiency," before the harm to competition is effected. It is enough that they "may" have the prescribed effect. Cf. Standard Fashion Co. v. Magrane-Houston Co., 258 U. S. 346, 258 U. S. 356-357. But, as was held in the Standard Fashion case, supra, with respect to the like provisions of § 3 of the Clayton Act, prohibiting tying clause agreements the effect of which "may be substantially to lessen competition," the use of the word "may" was not to prohibit discriminations having "the mere possibility" of those consequences, but to reach those which would probably have the defined effect on competition.
as Kansas City, are in a less favorable position. The consequence is, as found by the Commission, that several manufacturers of candy who were formerly located in Kansas City or other cities served from petitioners' Kansas City plant have moved their factories to Chicago.
Further, we have seen that prices in cities to which shipments are made from Kansas City are frequently discriminatory, since the prices in such cities usually vary according to factors, phantom freight or freight absorption, which are unrelated to any proper element of actual cost. And these systematic differentials are frequently appreciable in amount. The Commission's findings that glucose is a principal ingredient of low priced candy and that differences of small fractions of a cent in the sales price of such candy are enough to divert business from one manufacturer to another readily admit of the Commission's inference that there is a reasonable probability that the effect of the discriminations may be substantially to lessen competition.
The weight to be attributed to the facts proven or stipulated, and the inferences to be drawn from them, are for the Commission to determine, not the courts. See Federal Trade Commission v. Pacific States Paper Trade Assn., 273 U. S. 52, 273 U. S. 63; Federal Trade Commission v. Algoma Lumber Co., 291 U. S. 67, 291 U. S. 73; cf. National Labor Relation's Board v. Southern Bell Tel. Co., 319 U. S. 50, 319 U. S. 60. We cannot say that the Commission's inference here is not supported by the stipulated facts, or that it does not support the Commission's order.
charged that petitioners have further violated § 2(a) of the Clayton Act, as amended, by permitting certain favored customers to secure options for the purchase of glucose, and to take delivery at the old price, for periods longer than those usually permitted to other customers. The Commission also charged other violations of § 2(a) in that petitioners favored certain tank wagon customers by permitting them to book orders at the lower prices charged for tank car deliveries, and to take deliveries by tank wagon over extended periods of time. The Commission found, upon ample evidence, that these discriminations were in fact made by petitioners.
Petitioners assert that the practices prohibited by § 2(a) are discriminations in price, and not in the terms and conditions of sale other than price. They rely on the fact that in the course of the progress of the Robinson-Patman bill through Congress, the phrase "terms of sale," originally included in the prohibited discriminations, was stricken from the bill. But even if the contention be accepted, we cannot ignore the fact that the present discriminations in the terms of sale operated to permit the favored customers to purchase at a lower price than other customers, so that their only practical effect was to establish discriminations in price, precisely the evil at which the statute was aimed. And the Conference Committee, in reporting on this elimination of the phrase "terms of sale" from the bill, made it clear that § 2(a) still applied to indirect as well as direct discriminations in price. It said that, with the elimination of the phrase "terms of sale," the act is inapplicable to "terms of sale except as they amount in effect to the indirect discriminations in price within the meaning of the remainder of subsection (a)." H.Rep. No. 2951, 74th Cong., 2nd Sess., p. 5.
"Upon proof being made at any hearing on a complaint under this section that there has been discrimination in price . . . , the burden of rebutting the prima facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, That nothing herein contained shall prevent a seller rebutting the prima facie case thus made by showing that his lower price . . . was made in good faith to meet an equally low price of a competitor. . . ."
The only evidence said to rebut the prima facie case made by proof of the price discriminations was given by witnesses who had no personal knowledge of the transactions, and was limited to statements of each witness' assumption or conclusion that the price discriminations were justified by competition. Examination of the testimony satisfies us, as it did the court below, that it was insufficient to sustain a finding that the lower prices allowed to favored customers were in fact made to meet competition. Hence, petitioners failed to sustain the burden of showing that the price discriminations were granted for the purpose of meeting competition. Cf. Federal Trade Commission v. A. E. Staley Mfg. Co., post, p. 324 U. S. 746.
Finally, it is contended that there was no evidence to support the Commission's finding, which was referable to these practices as well as petitioners' basing point practices, that the discriminations in price may diminish competition within the meaning of § 2(a). This finding as to the effect of both types of discrimination was based on the same stipulation of facts which we have already considered in connection with the basing point practices.
Since the customers here are the same manufacturers of low-priced candies as were there involved, and since the price discriminations here are relatively substantial in a field where differences of a fraction of a cent in the price of candy are sufficient to divert business from one manufacturer to another, we think that the stipulation, which we find to be applicable to these as well as the basing point practices, is sufficient to support the finding of the prescribed effect on competition.
Still other price discriminations by petitioners charged and found by the Commission were discounts allowed to certain favored purchasers of gluten feed and meal, byproducts of petitioners' refining of corn, and other discounts allowed to certain favored purchasers of starch and starch products. It was not and is not contended that these allowances were due to differences in the cost of manufacture, sale or delivery. But it is asserted that these discriminations did not violate § 2(a), since there was not the requisite effect on competition.
It was stipulated, and the Commission found, that the allowances in question were "sufficient," if and when reflected in whole or in substantial part in resale prices, to attract business to the favored purchasers away from their competitors, "or to force [their] competitors to resell . . . at a substantially reduced profit, or to refrain from reselling." But it is asserted that there is no evidence that the allowances ever were reflected in the purchasers' resale prices. This argument loses sight of the statutory command. As we have said, the statute does not require that the discriminations must in fact have harmed competition, but only that there is a reasonable possibility that they "may" have such an effect. We think that it was permissible for the Commission to infer that these discriminatory allowances were a substantial threat to competition.
"(e) . . . it shall be unlawful for any person to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale, with or without processing, by contracting to furnish or furnishing, or by contributing to the furnishing of, any services or facilities connected with the processing, handling, sale, or offering for sale of such commodity so purchased upon terms not accorded to all purchasers on proportionally equal terms."
The alleged violation consisted of advertising expenditures made by petitioners for the Curtiss Candy Company in order to promote the sale of dextrose or corn sugar for use in candy manufacture. For this purpose, petitioners entered into an arrangement with the Curtiss Candy Company, whereby, during the years 1936 to 1939, they spent over $750,000 in advertising Curtiss candy as being "rich in dextrose." At the same time, Curtiss advertised its candy as being "rich in dextrose" and made the same statement on its labels. While Curtiss was free to purchase dextrose used in the advertised candies from other manufacturers, it in fact made all such purchases from petitioners, in annually increasing quantities until it purchased a total of seven million pounds in 1939. During the same period, it purchased of petitioners large quantities of glucose, the purchases increasing from nothing in 1937 to almost fifteen million pounds in 1939. Although petitioners sold dextrose to others, it did not furnish proportionally equal advertising services to them.
properly infer that the advertising for which petitioners paid contemplated the sale of that commodity of Curtiss, and that the advertising contemplated the offering for sale of the candy by Curtiss. Petitioners thus furnished a service connected with the sale or offering for sale of a commodity upon terms not accorded to other purchasers. The statute does not require that the discrimination in favor of one purchaser against another shall be provided for in a purchase contract or be required by it. It is enough if the discrimination be made in favor of one who is a purchaser and denied to another purchaser or other purchasers of the commodity.
It is said also that the Curtiss Company was not a purchaser of a commodity "bought for resale, with or without processing" within the meaning of § 2(e), since the Curtiss Company buys dextrose from petitioners, but uses it with other ingredients to produce candy, an entirely new commodity, which it sells. While the Act does not define the term "processing," the conversion of dextrose into candy would seem to conform to the current understanding that processing is a mode of treatment of materials to be transformed or reduced to a different state or thing. See Cochrane v. Deener, 94 U. S. 780, 94 U. S. 788. In view of the purpose of the statute to prevent the enumerated discriminations attending the sale of a commodity for resale, the precise nature or extent of the processing before resale would seem to be immaterial. The statute is aimed at discrimination by supplying facilities or services to a purchaser not accorded to others, in all cases where the commodity is to be resold, whether, in its original form or in a processed product. The evils of the discrimination would seem to be the same whether the processing results in little or much alteration in the character of the commodity purchased and resold.
Curtiss was not found to have been sold in interstate commerce; that, if the section is construed to apply to such transactions, it would be unconstitutional, and that, in any case, there is no showing that the transaction complained of, although not themselves in interstate commerce, have in any way affected such commerce. But the effect upon the commerce is amply shown by the interstate and national character of the Curtiss Company's business; by petitioners' advertising for Curtiss, which was itself frequently in interstate commerce, amounting to $750,000, and by Curtiss' own admission that it competed in the sale of its candy in interstate commerce with all manufacturers of one cent and five cent bars of candy. Moreover, some of petitioners' sales to other companies to whom these allowances were not accorded were made in interstate commerce; thus, there was a discrimination against sales in interstate commerce well within the power of the Commission to remedy.
Petitioners make a number of other arguments or contentions of lesser moment which we have considered but find it unnecessary to discuss. We conclude that the advertising furnished by petitioners was a service or facility "connected with the processing . . . sale, or offering for sale" of the commodity purchased by the Curtiss Company upon terms not accorded to other purchasers, and therefore violated the statute.
The illustrative prices found by the Commission show this sharply varying factory net and also the amounts of phantom freight. The figures given are upon deliveries from Kansas City for August 1, 1939, when the Chicago base price was $2.09.
The report said: "Section 3 authorizes nothing which that amendment [to § 2 of the Clayton Act] prohibits, and takes nothing from it."


9. To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith because of a handicap of (i) that person, (ii) a person residing in or intending to reside in that dwelling after it was so sold, rented or made available, or (iii) any person associated with that buyer or renter.
3. All premises within covered multi-family dwelling units contain an accessible route into and through the dwelling; light switches, electrical outlets, thermostats, and other environmental controls are in accessible locations; there are reinforcements in the bathroom walls to allow later installation of grab bars; and there are usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space. As used in this subdivision the term “covered multi-family dwellings” means buildings consisting of four or more units if such buildings have one or more elevators and ground floor units in other buildings consisting of four or more units.
C. Compliance with the appropriate requirements of the American National Standards for Building and Facilities (commonly cited as “ANSI A117.1″) or with any other standards adopted as part of regulations promulgated by HUD providing accessibility and usability for physically handicapped people shall be deemed to satisfy the requirements of subdivision B 3.
D. Nothing in this chapter shall be construed to invalidate or limit any Virginia law or regulation which requires dwellings to be designed and constructed in a manner that affords handicapped persons greater access than is required by this chapter.
1972, c. 591, § 36-88; 1973, c. 358; 1978, c. 138; 1984, c. 685; 1985, c. 344; 1989, c. 88; 1991, c. 557; 1992, c. 322; 1996, c. 327.
If you’re reading this for anything important, you should double-check its accuracy—read § 36-96.3 on the official Code of Virginia website.
. . . of Code §§ 36- . . .
. . . Defendants violated § 3604(f)(1) of the FHA and section 36-96.3(A)(8) of the VFHL (Counts I and II) . . .
. . . rent in violation of FHA § 3604(f)(1) and VFHL § 36-96.3(A)(8) (Counts I & II); discrimination . . .
. . . the Virginia Fair Housing Act, VA. CODE ANN. § 36-96.3. Specifically, Plaintiffs allege the . . .


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In this post we explore the standards that govern motions to dismiss a federal court complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Particular emphasis is placed on decisions issued by the United States Supreme Court, and the U.S. Court of Appeals for the Third Circuit which includes the United States District Court for the District of New Jersey.
Rule 12(b)(6) provides that a motion to dismiss a complaint may be filed for “failure to state a claim upon which relief can be granted.” Id. “The purpose of the rule is to allow the court to eliminate actions that are fatally flawed in their legal premise and destined to fail, and thus spare the litigants the burdens of unnecessary pretrial and trial activity.” Advanced Cardiovascular Sys., Inc. v. SciMed Life Sys., 988 F.2d 1157, 1160 (Fed. Cir. 1993), reh’g en ban denied.
Particular circumstances may justify the filing of a motion to dismiss a plaintiff’s complaint for failure to state a claim under Rule 12(b)(6). Typically, this motion is filed at the beginning of the case and in lieu of filing an answer to the complaint, and can be a good strategical move to get the judge involved early on. Filing a motion to dismiss should not be an automatic response to a sloppily drafted complaint, however.
Yet, the potential upside of filing a Rule 12(b)(6) motion – dismissal – is very appealing. The court may dismiss several causes of action and maybe even the entire case. Since a plaintiff can ask the court’s permission to amend a complaint when faced with a Rule 12(b)(6) motion, a defendant has to determine if there is a likelihood of succeeding on the motion before incurring the time and expense of going for the jugular early in the case. Also, researching published and unpublished decisions of the judge assigned to your case is appropriate before deciding whether to file a motion to dismiss.
Assuming a defendant and its attorney have weighed the pros and cons and have determined to proceed with a motion to dismiss under Rule 12(b)(6), let’s review the standards that the United States District Court for the District of New Jersey is bound to apply in civil cases.
To survive a Rule 12(b) motion to dismiss, the complaint must assert a plausible claim, and set forth sufficient factual allegations to support the claim. Ascroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-1950, 173 L.Ed.2d 868 (2009)(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Pleadings are no longer satisfied by “an unadorned the-defendant-unlawfully-harmed me accusation.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555). Now, neither a “formulaic recitation of the elements of a cause of action” nor “naked assertions [of fact] devoid of further factual enhancement” is sufficient to withstand dismissal. Id. To satisfy the standard under Twombly and Iqbal, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (citing Twombly, 550 U.S. at 570). A claim has facial plausibility when the plaintiff pleads enough factual content that allows the court to draw the reasonable inference that the defendant is liable under the alleged claim. Id. (citing Twombly, 550 U.S. at 556). “A court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Therefore, if allegations are merely “conclusory,” they are “not entitled to be assumed true.” Id. Even if a court decides that the factual allegations are entitled to an assumption of truth, however, the facts must also “plausibly suggest an entitlement to relief.” Id. at 1951.
While a court confronted with a Rule 12(b)(6) motion must accept the truth of all factual allegations in the complaint and must draw all reasonable inferences in favor of the non-movant, Gross v. German Found Indus. Initiative, 549 F.3d 605, 610 (3d Cir. 2008), legal conclusions receive no such deference, and the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1886)(cited with approval in Twombly, 550 U.S. at 555 (citations omitted)). Although a plaintiff may use legal conclusions to provide the structure for the complaint, the pleading’s factual content must independently “permit the court to infer more than the mere possibility of misconduct.” Iqbal, 129 S.Ct. at 1950. In short, when the well pleaded complaint does not permit the court “to infer more than the mere possibility of misconduct,” the pleader is not entitled to relief. Fowler v. UPMC Shadyside, 578 F.3d 203, 2011 (3d Cir. 2009)(quoting Iqbal, 129 S.Ct. at 1949).
A Rule 12(b)(6) motion may be based on the res judicata (also known as the doctrine of claim preclusion that bars re-litigating claims previously decided in an earlier action) if the defense is apparent on the face of the complaint. Brody v. Hankin, 299 F.Supp.2d 454, 458 (E.D.Pa. 2004)(citing Rycoline Prod’s v. C & W Unlimited, 109 F.3d 883, 886 (3d Cir. 1997)); accord Bethel v. Jendoco Const. Corp., 570 F.2d. 1168, 1174 n. 10 (3d Cir. 1978). The same rule applies when the motion is premised on a statute of limitations defense. Rycoline Prod’s, 109 F.3d at 886.
In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court may only consider the complaint, exhibits attached to the complaint, matters of public record, and undisputably authentic documents if the complainant’s claims are based upon those documents. See PBGC v. White Consolidated Industries, Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); see also In re Burlington Coat Factory Sec. Lit, 114 F.3d 1410, 1426 (3d Cir. 1997)(a document forms the basis of a claim when it is “integral to or explicitly relied upon in the complaint” and such a document “may be considered without converting the motion to dismiss into one for summary judgment.”).
Subject to the above exceptions, if “matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). When a district court decides to convert a motion to dismiss into a motion for summary judgment, it must provide the parties “reasonable opportunity” to present all material relevant to a summary judgment motion. Fed. R. Civ. P. 12(b). The parties can take advantage of this opportunity only if they have “notice of the conversion.” Rose v. Bartle, 871 F.2d 331, 340 (3d Cir. 1989). The notice must be “unambiguous” and must “fairly apprise[ ]” the parties that the court intends to convert the motion. Id. at 341-42.
This post is provided for informational purposes only, and should not be construed as providing legal advice. Nor should this post be considered an exhaustive review of the subject matter.
Need assistance with a civil case in the United States District Court for the District of New Jersey, contact our New Jersey law firm today to speak with an experienced federal court litigator.

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