The opinion
On Rehearing.
PER CURIAM.
The petition for rehearing questions the correctness of the text of that portion of the opinion that relates to the trial judge’s statement, in passing sentence, that he was “unable to indulge the presumption that in this case the defendant was convicted of its virgin offense” — the point of the petition being, that in the use of the word “defendant” in connection with “virgin offense,” the trial court referred to the -Standard Oil Company of Indiana, and not to the Standard Oil Company of New Jersey. The trial court, in passing sentence, expressly stated that the Standard Oil Company of Indiana was but the nominal defendant, the Standard Oil Company of New Jersey being the real defendant; and every word, almost, of the trial court, in arriving at its conclusion respecting the sentence, related to the Standard Oil Company of New Jersey, and not to the Standard Oil Company of Indiana, including the statement that the rev *396 enues of the “offender,” and the character of the crime, showed that they had a peculiar relation to each other — the revenues referred to obviously being the revenues of the Standard Oil Company of New Jersey — 40 per cent, on $100,000,000 — no revenues of the Standard Oil Company of Indiana being in the record at all. And counsel for the government plant their justification of the fine upon the showing of the revenues, not of the Standard Oil Company of Indiana, but of the Standard Oil Company of New Jersey. But as a suggestion that that line in the text of the opinion be changed, the suggestion will be accepted, and the opinion so amplified that while the language used to express the point is changed, the substance of the point involved will be more clearly brought out.
The petition for rehearing also questions the correctness of the text of that portion of the opinion in which, dealing with the question whether a shipper is guilty of accepting a concession, even though it is shown that the shipper, at the time of accepting such concession, did not know what the lawfully published rate actually was, the view taken by the trial court is said to be “a view of the law that is embodied in the charge, and carried out in the rulings ‘excluding’ certain proffered testimony, including that of one Edward Bogardus”— the point of the complaint being that the testimony of Bogardus, as to whether he knew or did not know of an 18 cent rate over the Alton road, was not “excluded.”
Now as a matter of what physically went into the record, Bogardus’ testimony was admitted, and went to the jury on the issue adopted by the court whether he had made “diligent endeavor” to ascertain the rate — an issue wholly different from the one upon which it was offered, viz., whether or not defendant had knowledge of what the lawfully established rate was. On the latter issue, the testimony of Bogardus was as effectually excluded by the charge to the jury as if it had physically been expunged from the record.
Courts have the right to expect that counsel accustomed to practice in the courts of review, not only know the meaning of legal terms constantly in use in discussions and opinions of these courts, but will not misuse such terms to spread misinformation respecting a judgment that, in the nature of the case, is bound to attract wide public attention — a remark the germaneness of which the bar of the country will perceive when we say that all that has to be done to obviate the objection made, is to insert a clause so that the portion of the opinion objected to will read “a view of the law that is embodied in the charge, and carried out in the rulings excluding, as a result of the charge on that point, the proffered testimony of one Edward Bogardus” — the italicized portion being the only words inserted.
Petition is overruled.