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UNITED STATES v. GUNN

October 14, 1950

UNITED STATES
v.
GUNN ET AL.



The opinion of the court was delivered by: John E. Miller, District Judge.

An information containing five counts was filed on August 2, 1950, and summons was issued thereon on the same date. In response to the summons, the defendant, Clifford C. Gunn, appeared by his attorney, Honorable Carl Creekmore, on September 8, 1950, and entered a plea of nolo contendere. The defendant, Ozark Packing Company, a corporation, appeared on the same date by its attorney, Mr. J.S. Daily, and entered a plea of not guilty.

On October 11, 1950, the cause was tried to the Court upon the information and respective pleas and testimony introduced by the government and the defendant, Ozark Packing Company, a corporation.

The defendant, Clifford C. Gunn, d/b/a C.C. Gunn Produce Company of Van Buren, Arkansas, is charged with engaging in the business of a contract carrier and transporting canned vegetables by motor vehicle on public highways from Ozark and Van Buren, Arkansas, to points in the states of Georgia, Florida, Alabama and Louisiana, for compensation, without first having obtained from the Interstate Commerce Commission a permit authorizing him to perform such operations and in violation of Title 49 U.S.C.A. § 309(a).

The defendant, Ozark Packing Company, a corporation, is charged in Counts 1 to 4, both inclusive, with having knowingly and wilfully aided and abetted the defendant, Clifford C. Gunn, with respect to the illegal operations charged in those four counts, in violation of Title 18 U.S.C.A. § 2.

The defendant, Ozark Packing Company, waived in writing a jury trial, with the approval of the Court, and the counsel for the Government. Neither of the defendants have requested the Court to find the facts specially, but because of the nature of the defense made by the defendant, Ozark Packing Company, a corporation, the Court is of the opinion that findings of fact should be made and filed herein in accordance with Rule 23 of the Federal Rules of Criminal Procedure, 18 U.S.C.A.

Findings of Fact

1

The defendant, Clifford C. Gunn, under the name of C.C. Gunn Produce Company, is engaged in the wholesale fruit and vegetable business in Van Buren, Arkansas. He operates as a grower and shipper and as a jobber. He operates trucks in connection with his business and at times has used his trucks in the transportation of canned vegetables for canners situated in Crawford and adjoining counties.

The defendant, Ozark Packing Company, is a corporation engaged in the business of canning vegetables at Ozark, Arkansas. It is a small corporation and its business policies and methods are dictated and controlled by W. Bradley Kimbrough, President and General Manager.

2

The offense charged in Count 1 of the information arises out of the operation of the defendants under an alleged "truck lease" entered into between the defendants on October 10, 1949. The alleged "truck lease" was introduced in evidence and discloses that the defendant, Clifford C. Gunn, on that date leased to the defendant, Ozark Packing Company, for a period of one trip from Ozark, Arkansas, to Jacksonville, Florida, certain motor equipment. The lease was to expire when the canned vegetables were delivered in accordance with shipping instructions. The lease further provided that the lessor, the defendant Clifford C. Gunn, was to furnish for operation of the truck or trucks the required lubricants and fuel and also furnish one or more competent drivers.

Likewise, Counts 2, 3 and 4 are based upon the same or similar alleged "truck leases", but Count 5 is based upon a lease containing entirely different provisions and was made by the defendant, Clifford C. Gunn, with the Van Buren Canning Company. The Van Buren Canning Company is not a party defendant and no charges of any kind have been made against that Company.

3

The Government and the defendant, Ozark Packing Company, entered into a Stipulation, which provides as follows:

"1. The transportation services in interstate commerce described in Counts 1, 2, 3 and 4 of the information in this cause were rendered by Clifford C. Gunn as alleged therein, and the said Gunn was compensated for his services by credits to his account due and owing to Ozark Packing Company, in the amounts specified in Counts 1-4, inclusive. The trucks used were the property of Clifford C. Gunn and were operated by his drivers who were employed and paid by him. At all times mentioned in Counts 1-4, inclusive, of the information, insofar as is known to Ozark Packing Company, said drivers received their orders and instructions from Clifford C. Gunn.

"2. The sole issue to be determined by the Court is this cause, as to Ozark Packing Company, is whether or not it `knowingly and wilfully' aided and abetted the said Clifford C. Gunn in any violations of Title 49, Sections 309(a) and 322(a), U.S. Code, of which the Court may decide that the said Clifford ...


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