« ZurückWeiter »
of the Secretary of the Treasury, may prescribe. Every person who shall export oleomargarine shall brand upon every tub, firkin, or other package containing such article the word 'Oleomargarine,' in plain Roman letters not less than one-half inch square." Comp. St. 8 6228.
“Section 20. That the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may make all needful regulations for the carrying into effect of this act." Comp. St. § 6232.
In 1897 the state of Illinois passed a statute (Laws 1897, p. 3) prohibiting the manufacture of colored oleomargarine in Illinois, and in the course of this trial this statute was, against the objection of the plaintiffs in error, read in evidence. Two of the important sections of this state law read as follows:
“Section 1. Be it enacted by the people of the state of Illinois, represented in the General Assembly, that for the purpose of this act, every article, substitute or compound, other than [that] which is produced from pure milk or cream therefrom, made in the semblance of butter and designed to be used as a substitute for butter made from pure milk or its cream, is hereby declared to be imitation butter: Provided, that the use of salt and harmless coloring matter for coloring the product of pure milk or cream shall not be construed to render such product an imitation.
“Section 2. No person shall coat, powder or color with annatto, or any coloring matter whatever, any substance designed as a substitute for butter, whereby such substitute or product so colored or compounded shall be made to resemble butter, the product of the dairy.".
The John F. Jelke Company was organized as an Illinois corporation in 1889, the stockholders being George P. Braun, John F. Jelke,' and L. V. Fitts ; they were also directors and officers. The corporate name of the company at this time was Braun & Fitts Company, and it succeeded to the business and purchased the assets of Braun & Fitts, a partnership. John F. Jelke increased his holdings in the company, and plaintiff in error F. M. Lowry became its secretary in 1902, and continued in that position thereafter, and was so acting at the time of the trial. The change in name of the corporation occurred in 1907.
The George P. Braun Company is an Illinois corporation, and was organized December 5, 1904. In 1908 John F. Jelke became the owner of a large share of stock of this corporation, and shortly thereafter the directors were Ferdinand F. Jelke, F. M. Lowry, John F. Jelke, Jr., William M. Steele, and John F. Jelke. The record shows that both of these companies transacted a very large business, and that their principal place of business was at Chicago, Ill.
Plaintiffs in error were all connected in some way with one of these two companies. John F. Jelke was secretary-treasurer and director of the Braun & Fitts Company, later general manager, and still later president and practically the sole owner of the stock. His relations to the company were the same after it changed its name to the John F. Jelke Company. He also was the owner of over 0 per cent. of the stock of George P. Braun Company and was director thereof; his son being president. Francis M. Lowry was secretary of the Braun & Fitts Company, later known as the John F. Jelke Company, and was secretary and director and stockholder of George P. Braun Company. Prior to his official connection with the Braun & Fitts Company, he was credit man and assistant manager of the company. Plaintiff in error William M. Steele was office and sales manager of John F. Jelke Company from 1908 to the time of the indictment, and was director and stockholder in George P. Braun Company. William P. Jackson, was manager of George P. Braun Company from May 11, 1898, to June 30, 1911. Harry E. Hitchins was salesman for Braun & Fitts Company, later known as the John F. Jelke Company, froin May, 1902, to 1910. Hugh D, Cameron, was a former internal revenue officer, and then became salesman for Braun & Fitts Company, and remained in that capacity from 1905 to 1910. William L. Lillard was salesman for the John F. Jelke Company from 1907 to 1909. L. B. Tullis was salesman for Braun & Fitts Company for about nine years. Fred Rapp was salesman for George P. Braun Company from 1907 to 1911.
Abner D. Mize became a salesman for Braun & Fitts in 1900, and left that employment in 1906. 0. S. Martin, a former internal revenue agent, became a saleswan for the Braun & Fitts Company in 1901, later taking charge of the
New York branch of that company. Both Martin and Mize were discharged by the court on the ground that the statute of limitations had run against the offense so far as they were concerned. Philemon Berry, a former internal revenue collector, was for several years a salesman for the John F. Jelke Company, but he was never apprehended. Harvey P. McFarland was assistant and later chief shipping clerk for Braun & Fitts Company, serving in that capacity from 1900 to the date of the indictment. He was found not guilty by the jury.
To establish its charge of conspiracy, the government attempted to show, and claims the evidence clearly established, a motive on the part of the plaintiffs in error to commit the crime set forth in the indictment. It is claimed that this motive was established by showing: (a) That all of the plaintiffs in error were interested in increasing the sales of oleomargarine produced by the factories of the Jelke companies. All of the plaintiffs in error were either interested as stockholders or were salesmen who received commissions on sales made. (b) The testimony shows that in 1902, when the amended Oleomargarine act went into force, there was no developed business in uncolored oleomarzarine; that the factories engaged in manufacturing this product had previously turned out colored oleomargarine; that the consuming public was not at this time disposed to purchase the uncolored product. (c) That at certain seasons of the year, when the price of butter was at its lowest, it was impossible to manufacture oleomargarine and sell it in competition with butter and at the same time pay a ten cents per pound tax. In other words, colored oleomargarine could not compete in the market with butter in the summer time and pay a ten cent per pound tax,
Having established the motive, the government produced evidence tending to show a systematic and purposeful co-operation among the plaintiffs in error, as well as a common plan and very similar means, to get the colored oleomargarine produced by the Jelke factories upon the market without the payment of the tax of ten cents per pound thereon.
This proof came from the lips of many witnesses, the majority of whom were at one time or another engaged in selling colored oleomargarine to consumers, in violation of the law. It is claimed that the evidence establishes a well-defined plan on the part of the plaintiffs in error to develop the business which was so uniformly followed as to indicate it was preconcerted, and consisted of salesmen of the Jelke Company (one or more of the plaintiffs in error) approaching a retail merchant engaged in handling butter and similar products and proposing to him that he buy uncolored oleomargarine from the factory and engage in what was generally known, and throughout the tes-, timony was described, as "moonshining"'-that is, coloring oleomargarine without paying the ten cents per pound tax thereon.
The government further claims that the testimony showed the plaintiffs in error, as well as the John F. Jelke Company and George P. Braun Company, participated actively in carrying out the conspiracy and provided the means by which the object of such conspiracy might be attained. These means, among others, were: (1) The free distribution of coloring matter in bottles and cans to all purchasers of white oleomargarine. (2) The free distribution of tub liners and top and bottom circles with the sale of white oleomargarine. (3) The delivery of white oleomargarine in soft and pliable condition, making it possible for the "moonshiner" to more readily color his purchase. At the same time the colored oleomargarine was delivered in a hard state. (4) The delivery of white oleomargarine in tubs containing two pounds less than the tubs ordinarily carried. This permitted coloring matter to be mixed with the white oleomargarine and the weight would then correspond to the usual weight, thereby more effectually preventing detection. (5) The uncanceled stamps on tubs containing colored oleomargarine were so protected as to permit the "moonshiner" to fill and refill the same tub and prevent detection in case a government inspector appeared. (6) The Jelke companies made false reports to the government as to the names of the actual purchasers of white oleomargarine and the amounts thus purchased. The names of hakeries, not requiring a government license, were given as large purchasers, when in fact no purchases by such bakeries were made. This, it is claimed, was to prevent the government from tracing the output or successfully prose
cuting the "moonshiner." (7) "Moonshiners," arrested for violation of the law, were provided with bondsmen, legal counsel, and were assisted in other ways. (8) Delivery of oleomargarine in cheese boxes in place of oleomargarine tubs; the delivery of goods in wagons bearing no name; the transfer of goods en route from factory wagons to other wagons; warning sent the “moonshiner" of prospective visits from revenue agents; detailed instructions and advice to men known to be engaged in the "moonshining'' business as to the best methods and means of coloring white oleomargarine.
The government contends that these various means were adopted by the plaintiffs in error, and were used by them singly and sometimes jointly, very generally for several years. It is claimed that each and every one of the plaintiffs in error participated, not once, but many times, in accomplishing the end of the alleged conspiracy by the means indicated, and the statements made by the various co-conspirators to the "moonshiners" who testified in the case established the preconcerted common plan, means and purpose as related above.
The government further contends that the evidence showed that the officers of the Jelke companies called the salesmen together regularly (it is claimed on Saturday afternoons) where the plan of extending the business was discussed ; that such plan called for a constantly increasing number of customers
through the means heretofore set forth, and the salesmen were instructed to · advance, if necessary, the difference between the retailer's license fee for
selling colored oleomargarine over the license fee charged for selling uncolored oleomargarine.
None of the plaintiffs in error testified upon the trial in their own behalf either to dispute the statements made or to explain those susceptible of two inferences. On behalf of the plaintiffs in error, however, it is contended that each and every one of the so-called means or acts involving one or more of such plaintiffs in error, is explainable on the theory of the innocence of the plaintiffs in error of the crime charged. The government conceded that Braun & Fitts, the John F. Jelke Company, and the George P. Braun Company had at all times paid license fees as manufacturers and the ten cent and one-quarter cent per pound on all oleomargarine manufactured and sold by them, and that all the goods purchased by the “moonshiners” from such companies were tax paid according to law, and had been purchased and paid for at the time the "moonshiners" colored the oleomargarine. Plaintiffs in error showed that the furnishing of free coloring fluid to retailers was not illegal, but was in fact sanctioned by the rulings of the Commissioner of Internal Revenue.
The plaintiffs in error assailed the credibility of the government witnesses and showed that many of them had been retail dealers who had colored oleomargarine and sold it in violation of the law. It appeared from the testimony that many of the government witnesses had been granted immunity, others had pleaded guilty and were awaiting sentence, while still others were serving their time in the penitentiary. Such further statement of the facts as may be pertinent to the questions considered will appear in the opinion.
John Barton Payne and William S. Forrest, both of Chicago, Ill., for plaintiffs in error.
Charles F. Clyne and Henry W. Freeman, both of Chicago, Ill., for defendant in error.
Before KOHLSAAT, MACK, and EVANS, Circuit Judges.
EVAN A. EVANS, Circuit Judge (after stating the facts as above). Is the indictment sufficient?
Plaintiffs in error appropriately and timely raised this question, and now claim that the “allegations set forth in the indictment do not constitute a conspiracy to defraud the United States." The indictment is assailed:
(A) Because of the defects in the allegations wherein it is sought to describe the conspiracy, and
(B) Because of the defects in the allegations wherein it is sought to describe acts which are therein alleged to have been done to effect the object of the conspiracy.
 Contending that the specific allegations following the general charge of conspiracy in paragraph 5 of the indictment, limit and control the general allegations therein found, it is claimed the indictment is insufficient in so far as it attempts to charge the conspiracy for the following reasons: (a) Because not one of the defendants is alleged to be a manufacturer of oleomargarine as defined by section 3 of the act. (b) Because not one of the individuals named or unnamed therein was capable of defrauding or had the power to defraud the United States out of the tax of ten cents per pound. (c) Because the indictment lacks an allegation showing that the tax mentioned in section 19 of the indictment was the tax to become due upon the oleomargarine thus artificially colored, or, if this be not accepted, it does not appear but what the divers persons and individuals referred to in section 17 did not intend to pay the tax. (d) Because the series of these successive acts do not show the defendants agreed among themselves to cause the individuals to do the things named in the indictment at a certain place or certain places within the territory of the United States. (e) Because the indictment does not allege the period of time through which or the times which the said oleomargarine thus artificially colored was to be sold by the divers individuals. (f) Because of the uncertainty as to the meaning of the verb “to cause,” it having been used with different meanings in the same indictment; likewise because of the uncertainty of the verb "to furnish," and because of the uncertainty as to whether the profit accruing from the sale of artificially colored oleomargarine was to be for the profit of the defendants or of the divers individuals, and because of the uncertainty arising out of the omission of the words “the defendants” or the words "said individuals" in section 18 of the indictment, and because from all of the averments it is uncertain what is described in section 5 of the indictment as "certain oleomargarine artificially colored to look like butter of the shade of yellow," or what was referred to in section 17 of the indictment as "said oleomargarine thus artificially colored.”
(B) The sufficiency of the indictment is also attacked because: (a) No act therein alleged to be "an act done to effect the object of the conspiracy" is shown to be such an act within the rule laid down in Hyde v. United States, 225 U. S. 347, 32 Sup. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614. (b) Because it does not appear that any one of such overt acts was done after the conspiracy was formed. (c) Because the overt acts alleged to have been committed in furtherance of such conspiracy were not sufficiently described or particularized, in that they failed to identify the particular places or buildings in or at which the white oleomargarine and the coloring matter were delivered.
The foregoing statement follows the order and analysis of the learned counsel for plaintiffs in error. In support of these criticisms of the indictment under consideration, we have been favored with a lengthy and elaborate brief, evidencing much learning and great industry, and containing a most complete collection of decisions bearing on the imperfections of indictments and the construction and definition of words and phrases, which in turn has invited a discussion by the court, which, if accepted, would result in an opinion unjustifiable in length and involve the discussion of legal questions that are no longer moot. While perhaps instructive, we are convinced that many of the criticisms made are hypercritical and evidence scholastic ingenuity, but if adopted in this case, or applied to the average indictment, "would rightly bring odium upon the administration of justice in the minds of all sensible people, whether learned in the law or not.”
 Decisions that reject technical objections to criminal indictments are not now the exception, and an overwhelming array of authorities may be found that call for liberal construction of criminal pleadings. A few are herewith collected. Harper v. United States, 170 Fed. 385, 392, 95 C. C. A. 555; Ex parte Pierce (C. C.) 155 Fed. 663, 665; Peters v. United States, 94 Fed. 127, 131, 36 C. C. A. 105; United States v. Clark (C. C.) 37 Fed. 106, 107, 108; Rosen v. United States, 161 U. S. 29, 16 Sup. Ct. 434, 480, 40 L. Ed. 606; United States v. Ehrgott (C. C.) 182 Fed. 267, 270; Warren v. United States, 183 Fed. 718, 721, 106 C. C. A. 156, 33 L. R. A. (N. S.) 800; Alkon v. United States, 163 Fed. 810, 812, 90 C. C. A. 116; Coffin v. United States, 156 U. S. 432, 449, 15 Sup. Ct. 394, 39 L. Ed. 481; Ulmer v. United States, 219 Fed. 641, 134 C. C. A. 127.
The rule by which the sufficiency of this indictment must be measured is well set forth in Harper v. United States, 170 Fed. 385, 392, 95 C. C. A. 555, 562:
"The rules governing criminal pleadings have become less technical and more practical, but no less protective to the accused, since the Supreme Court in a series of cases beginning in the year 1893, notably Dealy v. United States, 152 U. S. 539 (14 Sup. Ct. 680, 38 L. Ed. 545); Evans v. United States, 153 C. S. 584 [14 Sup. Ct. 934, 38 L. Ed. 830]; Dunbar v. United States, 156 U. S. 185 [15 Sup. Ct. 325, 39 L. Ed. 390]; Cochran & Sayre v. United States, 157 U. S. 286 [15 Sup. Ct. 628, 39 L. Ed. 704]; and Rosen v. United States, 161 U. S. 29 [16 Sup. Ct. 434, 480, 40 L. Ed. 606]—has under various circumstances declared that allegations in an indictment are sufficient if their meaning is 'clear to the common understanding'; that 'no impracticable standards of particularity should be set up'; that ‘few indictments under the national banking law are so skillfully drawn as to be beyond the hypercriticism of astute counsel'; and that 'the entire indictment is to be considered in determining whether the offense is fairly stated.' The liberal tendency of the doctrine so announced has been followed by this court in Clement v. United States, 149 Fed. 305 [79 C. C. A. 243], Rinker v. United States, 151 Fed. 755 [81 C. C. A. 379), Stearns v. United States, 152 Fed. 900 [82 C. C. A. 48], and Morris v. United States, 161 Fed. 672 [88 C. C. A. 532]."
Section 37 of the Criminal Code, formerly section 5440, R. S., and now section 10201, U. S. Comp. St. 1916, reads as follows:
"If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any