dissenting:
I regret that I am unable to agree to the court’s decision. I think that for various reasons the judgment of the District Court should not stand.
*255The opinion fully and fairly sets forth the facts proved at the trial, and to its statement nothing need be added. Some of the reasons for my inability to agree with the court’s conclusions follow:
The Government relied for venue in the Western District of Wisconsin upon the commission in that district of overt acts in aid of the alleged common enterprise. I think the indictment fails to allege, and the evidence fails to disclose, the commission of any such act in the district of trial. I agree with the dissenting judge in the Circuit Court of Appeals that the case should be dismissed for this reason.
Paragraph 17 of the indictment alleges that the spot market tank car prices of gasoline substantially influence the retail prices.
Paragraph 18 is the only one that defines the charged conspiracy. It alleges that the defendants and others, knowing the facts pleaded by way of inducement (including the fact that retail prices follow spot market tank car prices), “combined and conspired together for the purpose of artificially raising and fixing the tank car prices of gasoline in the aforementioned spot markets, and,, as intended by them, defendants have artificially raised and fixed such spot market tank car prices of gasoline and have maintained such prices at artificially high and noncompetitive levels and at levels agreed upon among them and have thereby intentionally increased and' fixed the tank car prices of gasoline contracted to be sold, and sold, in interstate commerce as aforesaid in the Midwestern area (including the Western District of Wisconsin), . . .” It is further alleged that the defendants have arbitrarily, due to the form of their contract1 with jobbers, exacted *256large sums of money from jobbers and, in turn, have intentionally raised the general level of retail prices in the midwestern area (including the Western District of Wisconsin).
The sole and only conspiracy charged is the agreement artificially to raise and fix spot market tank car prices of gasoline in the Mid-Continent field.
Paragraph 19 is devoted to the means by which the conspiracy thus described was “effectuated.” The conduct of the defendants in this respect is described as their engaging and participating in two concerted gasoline buying programs, one, the East Texas buying program, and the other the Mid-Continent buying program, for the purchase by each of them from independent refiners in spot transactions of large quantities of gasoline in the East Texas and Mid-Continent fields.
After describing these buying programs in subsequent paragraphs, the indictment, in paragraph 25, alleges that the conspiracy “has operated and has been carried out in part within the Western District of Wisconsin.” The method of its operation in that district is described as follows: “In pursuance of said combination and conspiracy, defendant major oil companies (with the exception of Standard of Indiana-and Gulf) have contracted to sell and have sold and have delivered large quantities of gasoline in tank car lots to jobbers within said district at the artificially raised and fixed and non-competitive prices aforesaid and have arbitrarily exacted from jobbers within said district large sums of money. Defendant major oil companies (with the exception of Gulf) have solicited and taken contracts and orders for said gasoline within said district, sometimes by sales representatives located there, which district has been an important market for their product and they have required retail dealers and consumers in said districts to pay artificially increased prices for gasoline as aforesaid, all by virtue of said combination *257and conspiracy and pursuant to the purposes and ultimate objectives thereof.”
Thus, after describing the conspiracy as one to buy on spot markets for the purpose of raising the price of gasoline on those markets, the indictment purports to charge, as overt acts, entirely unrelated transactions of individual defendants in the resale of gasoline to jobbers and at retail in the Western District of Wisconsin.
There is no evidence in the record that any of the purchases made by the defendants pursuant to the conspiracy was made in Wisconsin. But if the indictment could bear the construction that the charged conspiracy involved an agreement as to the terms of resale to jobbers and retailers, proof was lacking to support any such alleged agreement. Government counsel, both in pleading and in admissions at trial, so conceded.
In its Bill of Particulars the Government said:
“The Government does not claim that each defendant entered into an agreement not to sell jobbers except in accordance with The contract described in paragraph 11 of the indictment.’ ”
At trial Government counsel repeatedly disavowed any charge in the indictment or any claim of the Government that there was an agreement amongst the defendants with respect to the price at which gasoline should be sold to jobbers or at retail. The evidence showed, without contradiction, that the Standard Oil Company of Indiana was the market leader in this area, and that when it posted its price none of the other defendants could sell at a higher price. It further showed that at various times Standard was forced to reduce its price to meet the competition of others. In this connection Government counsel made the following statements:
“. . . We do not say that the Standard of Indiana when it posts a retail price first consults with the other companies to find out what retail price should be posted.
*258“If that is what you’re worrying about, if you think we’re charging you with sitting around a table and agreeing on a uniform retail price, don’t worry because that isn’t what we are charging.”
In its brief in this court the Government attempts to avoid the effect of these concessions by the statement that the defendants “were not free to sell as they pleased in the Midwestern areas” and adds that “an obligation to adhere to their prior price practice of selling on the basis of spot market prices was implicit in their unlawful agreement.” This amounts to saying that the conspiracy was not the one charged in the indictment but was a much more ample conspiracy not only to raise the general level of tank car prices on the spot market by purchasing on that market but to raise, maintain, and fix uniform resale prices to jobbers and retailers. But this contention does not aid the Government for there is no evidence of any agreement to raise, or to maintain, jobber and retail prices, but, on the contrary, evidence that competition in such sales existed during the period in question.
Situations arise, and results ensue, from the prosecution of any agreement or conspiracy. Individual defendants may expect benefits to follow from their adherence to a conspiracy or agreement; but benefits or results, whether anticipated or unforeseen, occurring after consummation of the conspiracy, and because of it, are not overt acts done in aid and furtherance of the conspiracy. The authorities to this effect are uniform.2
The Government relies on United States v. Trenton Potteries Co., 273 U. S. 392. That case is clearly not in point. There the conspiracy was to fix the prices of the commodity manufactured and sold by the defendants and to adhere to the prices so fixed. This court held that *259a sale made, pursuant to that agreement, in the Southern District of New York afforded venue in that district of an indictment for violation of the Sherman Act. The case would be apposite if the pleading and proof in the instant case were of a conspiracy to fix and maintain jobber and retail prices and adherence to the agreement in sales to jobbers and retailers. Neither pleading nor proof goes to any such conspiracy.
In accordance with the Government’s contention, the trial court repeatedly charged that, in order to convict, the jury must find that a combination existed and that the combination agreed to, and had the power to, raise the tank car spot market price of gasoline.. Of course, the jury was at liberty to find that any number of the defendants less than all fulfilled the conditions named by the court. By its verdict the jury found that those who were convicted, as a body, (1) possessed the power to raise the price and (2) agreed so to do. The trial court granted a new trial to a number of defendants, including Standard of Indiana, the largest major oil company doing business in the area.
Standard was granted a new trial on the ground that there was no sufficient evidence to connect it with the conspiracy. By refusing new trials to the other corporate defendants the court has entered its own verdict that the others involved, excluding Standard, had the power, and agreed, to raise the level of spot market prices in the mid-western area. There is no jury verdict to that effect; no jury has ever passed upon that question, but an affirmative finding on that question is vital to the guilt of the defendants now before us. To affirm the judgment of conviction is to affirm a finding of fact by the trial judge without a jury and to deny the respondents the right to jury trial guaranteed by the Sixth Amendment of the ‘Constitution.
*260The court’s instructions to the jury were that they should return a verdict of guilty if they found that the defendants’ actions had in any degree contributed to a rise in gasoline prices. The defendants insisted that the test was the effect of their combination upon competition, and that they could not be convicted unless the jury found that their agreement, and their conduct pursuant thereto, unreasonably restrained competition in interstate commerce.
There was substantial evidence that all the defendants agreed to, or did, was to act in concert to eliminate distress gasoline; that such gasoline was a competitive evil in that it tended to impair or destroy normal competition. There was substantial evidence that what they agreed to, and did, neither fixed nor controlled prices nor unreasonably affected normal competition and that their conduct affected prices only in the sense that the purchase of distress gasoline at going prices permitted prices to rise to a normal competitive level. There was no evidence that, as charged in the indictment, they agreed to, or in fact did, fix prices. The Court of Appeals, as I think, correctly held “that the substance of what was accomplished and agreed on was that the major companies would purchase from the independent refiners the latter’s surplus gasoline at going market prices.”
I think the defendants were entitled to have the jury charged that, in order to convict them, the jury must find that, although defendants knew the result of their activities would be a rise in the level of prices, nevertheless, if what they agreed to do, and did, had no substantial tendency to restrain competition in interstate commerce in transactions in gasoline the verdict should be not guilty.
As has been pointed out by this court, violation of the antitrust act depends upon the circumstances of indi*261vidual cases.3 It is always possible to distinguish earlier decisions by reference to the facts involved in them but, in the course of decision in this court, certain principles have been laid down to which, I think, the charge of the court ran counter.
One of these firmly established principles is that concerted action to remove a harmful and destructive practice in an industry, even though such removal may have the effect of raising the price level, is not offensive to the Sherman Act if it is not intended and does not operate unreasonably to restrain interstate commerce; and such action has been held not unreasonably to restrain commerce if, as here, it involves no agreement for uniform prices but leaves the defendants free to compete with each other in the matter of price.4
No case decided by this court has held a combination-illegal solely because its purpose or effect was to raise prices. The criterion of legality has always been the purpose or effect of the combination unduly to restrain commerce.
I think Appalachian Coals, Inc. v. United States, 288 U. S. 344, a controlling authority sustaining the defendants’ contention that the charge foreclosed a defense available to them under the Sherman Act. It is said that their combination had the purpose and effect of putting a floor under the spot market for gasoline. ' But that was *262precisely the purpose and effect of the plan in the Appalachian case. True, the means adopted to overcome the effect of the dumping of distress products on the market were not the same in the two cases, but means are unimportant provided purpose and effect are lawful.
Ethyl Gasoline Corp. v. United States, 309 U. S. 436, is relied upon, but, in that case, as in United States v. Trenton Potteries Co., 273 U. S. 392, maintenance of prices fixed by agreement was involved. So also in Sugar Institute v. United States, 297 U. S. 553, condemned features of the common plan had to do with the maintenance of announced prices and the abstinence from selling certain sorts of sugar. The combinations or agreements in these cases specifically prevented competitive pricing or took a commodity out of competition. This is not such a case.
As I think, the error in the court’s charge is well illustrated by the following instruction:
“If you should find that the defendants acting together, and those' independent refiners acting in concert with them, did not have the power to raise the level of spot market prices in the spot markets referred to in the indictment, or that they did not combine for that purpose, and if you should find also that the purchase of the said gasoline by the defendants affected the spot market prices only indirectly and incidentally, then you may consider all the circumstances surrounding the activities of the defendants to determine whether they were intended to and did merely eliminate abuses which tended to produce destructive competition and restore competition to. a fairer base and produce fairer price levels. In such event, you may conclude that the purchase of such gasoline in the manner shown by the evidence was reasonable and beneficial and not injurious to the public interest and that, therefore, the restraint of trade was not undue, and *263not illegal, and you may acquit the defendants.” (Italics supplied.)
This was to tell the jury that, if they found the combination had power and purpose to raise the general level of prices, they should convict without considering whether the defendants’ concert of action was intended merely to remove a source of destructive competition, and without considering whether, as defendants contended and sought to prove, other factors in the industry, over which they had no control, limited their power to raise prices beyond a level which would be the normal result of the removal of the abuses engendered by the dumping of distress gasoline.
I think that the closing address of counsel for the Government is ground for setting aside the verdict.
It is true that to much that was objectionable in that address the defendants did not object or, if they did, failed to except. However, they assigned error to the whole of it and excepted to some of the more egregious violations of the canons of fair comment. I am of opinion that a situation is presented, which regardless of the technicalities of procedure, requires action by an appellate court. But, in any event, portions which are the subject of exception alone require a reversal of the judgment.
The final and closing address covers twenty-eight pages of the record. About five refer to the facts in the case. The balance consists largely of what the speaker himself characterized as “clowning” and personal references to counsel, parties, the court, and other subjects, the object of which apparently was to distract attention from the issues.
At many points counsel should have been stopped by the court and warned against continuance of such tactics.
The Circuit Court of Appeals said as to this matter:
*264“The Government does not undertake to justify much of the argument and misconduct complained of, but it earnestly insists that any error committed is not of a reversible nature. As the case is to be reversed, there seems no occasion for us to make a determination in this respect. We shall merely express the opinion that some of the argument complained of was highly improper and that, taken in connection with the misuse of the Grand Jury testimony, heretofore discussed, would present a very serious obstacle to the affirmance of the judgment.”
I shall not quote those portions of the address which are quoted or summarized in the opinion of the court. It will suffice to make added reference to several portions.
One of the most reprehensible things a prosecutor can do is to attempt to put into evidence before the jury his own, and his colleagues’, opinion as to the guilt of the defendants he is prosecuting. Such a practice brings before the jury the unsworn testimony of a sworn officer of the Government. This fact lends it undue and improper weight and injects an element into the case which is so insidious and so impossible to counteract that trial judges, in my experience, have never hesitated to withdraw a- juror and declare a mistrial because of this violation of the canons.
In the closing address counsel said to the jury:
“Now, if anybody doubts, if anybody has the least shadow of a doubt about the fact that these men [referring to Government counsel] believe to the bottom of their hearts in the justice of the cause that they espouse here, I can disabuse their minds of that doubt at any time. They have been aggressive, and they have been forceful; their movements here have been intelligent, well-timed; and, as I said, they have come into this court room morning after morning, worn and tired almost to the breaking point. And it seemed to me that, I some times got the feeling, coming as they did then before you *265to present this evidence and this case, they were something like the Crusaders of old, saying ‘God wills it, God wills it.’”
Objection was not made by counsel for the defendants at the time of this statement but when a somewhat similar statement was made a few moments later objection was noted and exception taken. I think, however, that the offense was so flagrant that the court itself should have intervened irrespective of any objection.
A little later these statements occurred:
“Now, just between yourselves, do you honestly think that these boys here (indicating counsel at government table) fired with the enthusiasm of crusaders, as I say, and having given to this case every ounce of mental and physical strength they have, and I myself have contributed, also, would be trying to convict these men unless that was the wish and the desire of the highest officials in the government of the United States?”
After objection and exception counsel continued as follows:
“Now, just what do you think about it? Do you think these are three or four or five of these young fellows, as they have been calling them, just starting out on their own, running hog-wild? These are important men. I presume you all know they are engaged in a very important business, a business, the operation of which is almost a necessity in this country today. You don’t think the government of the United States would allow four or five lawyers to come out here and prosecute this case against them, against their wishes, or that the Secretary of the Department of the Interior would allow us to do it, if he didn’t want it done? And if he wanted it done it was because he believed, as did the other men in Washington, that there was a violation of law here, so outstanding and so withering and far-reaching in its effect that something ought to be done to stop it; and by that to’ tell the people *266of this country that you can’t do these things and get away with it.”
Again there was objection and exception.
Counsel did not confine himself to testimony as to the prosecutors’ belief in the defendants’ guilt but, in attacking the credibility of an important witness for defendants, essayed to contradict that testimony by a statement of counsel’s own knowledge of facts. The quotation from the address will make the matter clear:
“I want to refer in a moment to something that made an impression on me.
“You know, we lawyers have to depend — most of us are kind of tough guys. We have our own way of talking about witnesses. And one thing that we very often say and talk about is the three classes of liars. There is the plain liar, the damn liar, and the expert witness. And of all of them, the expert witness is the worst.
“There were a few of them here. There was Swensrud, the representative of the Standard of Ohio; there was Van Covern, and I think there was another one.
“But I just didn’t think much of Swensrud’s whole testimony, .especially after I found out that he was giving testimony that' they could ship gasoline in 1935 and 1936 up the Mississippi River to St. Paul. I happen to be around the Mississippi River quite a little, and know quite a lot about it. In 1935 and 1936, you couldn’t get a rowboat up the Mississippi River, north of Winona— because the Government was putting in these dams for the purpose of creating the nine-foot channel that you have read so much about. They had concrete clear across the river, spaced in so many ways, that, as I say, you just couldn’t get a rowboat up there. When Swensrud talked about gasoline going up that river, where I knew, because I lived there and was around there, that it couldn’t be done, I just thought-.”
*267After objection and a request that the court direct the jury to disregard the statement the court ruled:
“The jury may disregard it. I didn’t hear it. I was thinking about something else.”
Thereupon counsel resumed as follows:
“Now, if you will let me alone a few minutes, I will be through. If you don’t, like 'Old Man River,’ I will just keep rolling along. I don’t want to do that.
“Now I was referring to these witnesses who knew so much. There was Van Covern, Swensrud, and a fellow named J. D. Miller. He was the fellow who never looked at anybody, so you could catch his eye. They knew so much, in the way they were telling it to you, that it is impossible, just impossible to believe that they could know as much as they said they did about it. They just covered too much territory. I think all history, sacred and profane, gives us but one single example of a person who knew everything — and he was not only a man, but he was God. And He gave up His life in a shameful death, upon the cross, between two thieves.”
It is true that no formal exception was taken but the matter was highly prejudicial. The court should have dealt with it in some definite and positive way, which he omitted to do.
Considering what is set out in the opinion of this court, and the additional references I have made to the address, I am of opinion that counsel’s argument was highly improper, as indeed the Government admits, and, further, that it was highly prejudicial. I do not think the court took proper means to counteract the impropriety and prejudice thus created and I think the only remedy available is to set aside a verdict ensuing upon such misconduct. Compare Berger v. United States, 295 U. S. 78, 85, 88, 89.
Mr. Justice McReynolds concurs in this opinion.Lonabaugh v. United States, 179 F. 476; United States v. Black, 160 F. 431; Rose v. St. Clair, 28 F. 2d 189.
United States v. American Tobacco Co., 221 U. S. 106, 178, 180; United States v. Union Pacific R. Co., 226 U. S. 61, 84-85; American Column & Lumber Co. v. United States, 257 U. S. 377, 400, 417; Maple Flooring Mfrs. Assn. v. United States, 268 U. S. 563, 568; Appalachian Coals, Inc. v. United States, 288 U. S. 344, 362-3, 373—4; Sugar Institute v. United States, 297 U. S. 553, 597-8.