opinion in the Nash case,[1] as that in the Harvester case[2]—two cases perfectly in accord, and both stating principles without which the law could not be administered. On the other hand Judge Faris, reaching, no doubt, a correct conclusion, by not being so misled, had he also considered the economic side of the matter, would not have required so much fortitude in arriving at the conclusion he did.
The sole distinction between the Nash and Harvester cases is the very simple distinction between the possible and the impossible,—between those things which can best be determined by juries and those which cannot be certainly defined by anybody—matters covering so broad a ground as to require the judgment of all men acting with a free and untrammeled use of their judgments,—and which, even with this great aid, constantly leads to grave error. In many things, men must act upon standards of the reasonable conduct of the average man under the same, or nearly like circumstances; and the average jury is, of course, the tribunal best adapted to ascertain such standards. But even in such cases, there must be evidence adequate to justify a jury's passing upon such matters. Nothing is to be left to mere surmise. Even in civil cases the jury will not be permitted to make a finding, where any essential fact is left to guess work. If it be proven that a man drove a car through a crowded street at one hundred miles an hour, it is perfectly reasonable for a jury to find that a reasonable man would not so act,—that there
- ↑ Nash vs. United States, 229 U. S. 373, 1913, was a proceeding under the criminal sections of the Sherman Act. Nash, the president of the American Naval Stores Company, was indicted, together with other officials of the company, for alleged acts in restraint of trade dealing in turpentine and rosin. It was charged that the defendants bid down the price of the products so that competitors would be forced to sell at ruinous prices only, circulated false statements as to production and stocks on hand, established "closed ports" for purchasing, made tentative offers of large stores of the products to depress the market, fixed the price below the cost of production to drive competitors out of business, issued false warehouse receipts for turpentine and rosin, and were guilty of numerous other acts to accomplish the purpose stated. The defense was that the statute was so vague as to be inoperative on its criminal side, that the acts and things would not have constituted an offense if they had been done, and that such acts were too vaguely charged in the indictment. The Court, against the contentions of Nash, held that there was no constitutional difficulty in the way of enforcing the criminal part of the act, that the acts alleged if done by intent would convert what on their face might be no more than ordinary acts of competition or the small dishonesties of trade into a conspiracy of the wider scope, and that the counts in the indictment were not bad for uncertainty. But the judgment on the conviction of Nash and others was reversed by the Supreme Court because of errors in the instructions of the trial Court to the jury.
- ↑ International Harvester Co. vs. Kentucky. See statement of the facts of the case, supra. Note 11, page 18.
