United States v. Fleming (134 F.2d 776, 1943)

FRANK, Circuit Judge.

Prosecution of appellant and five other defendants was begun on information. The information alleged that “the defendants, Albert Mook, Morris Mook, Joseph Mook and Max Mook, were copartners doing business under the style and trade-name of Mook Brothers, with office and principal place of business” in New York City; that “said defendants * * *, copartners as aforesaid,” had delivered and caused to be delivered, for transportation, to Baltimore, Maryland, to Tri-City Freight Lines, Tnc., a corporation engaged as a common carrier by motor vehicle in interstate commerce and subject to 49 U.S.C.A. Chapter 8, § 301 et seq., the Motor Carrier Act of 1935, and said corporation had thus delivered certain articles; that those defendants “unlawfully did knowingly solicit, accept and receive from said common carrier a concession” of a designated sum, for such transportation, below the published rates; that appellant, “agent, to wit, shipping clerk of said Albert Mook, Morris Mook, Joseph Mook and Max Mook, copartners as aforesaid, * * * unlawfully did knowingly” aid and abet those defendants, “copartners as aforesaid,” to commit a violation of the Act.

Before the trial, the government severed as to Max Mook. The other defendants, with their consent, were tried without a jury. The judge found Morris Mook and Joseph Mook not guilty, but found Albert Mook and appellant guilty. Albert Mook was fined $50 on each of twenty counts or $1000 plus costs. Sentence as to appellant was suspended, with probation of one day subject to the standing probation order of the district court. Albert Mook and appellant filed a notice of appeal. Pending the appeal, Albert Mook died. On motion oi the government, we dismissed the appeal of Albert Mook because of his death and that of appellant because, absent sentence, there was no appealable order as to him. See United States v. Mook, 2 Cir., 125 F.2d 706. We there said that if appellant desired to have us review the judgment, he could “apply for sentence and suspension of execution.” Appellant took that hint and, on his motion, the district court entered a resettled judgment imposing on him a fine of $1, but staying execution until further order of that court. The case is before us on appeal from that judgment.

1. Appellant argues, as follows, that there was a fatal variance between the allegations of the information and the proof: Mook Brothers, a partnership, was charged with violating the A