or omission was made with intent to defraud the United States.* An indictment for the sale of such cigars, by the use of the words "as required by law" after the averment that the cigars were not packed in boxes, stamped and marked as above described, supplies the omission of an allegation that the cigars did not belong to a class excepted from the statutory requirement.8 An allegation in an indictment that the defendant "did buy, receive and have in his possession" such cigars, does not necessitate the proof of all three of these acts by the defendant. Proof that he had such cigars in his possession is sufficient.5 § 5061. Indictments under the Oleomargarine Laws. A count of an indictment for attempting to defraud the United states on the tax of Oleomargarine 1 is sufficient when it describes the defendants, their place of business, the date and place where they conducted the business of manufacturing oleomargarine in violation of law, and defines with considerable particularity the steps that led up to and were a part of the attempt to defraud. An indictment to defraud the Revenue Laws of the United States by removing oleomargarine from the factory without payment of the tax may be found in any district where the article in pursuance of the conspiracy was concealed. Where it avers that the act prohibited was conspired to be performed unlawfully and knowingly, there is no need of an allegation that the fraud was to be accomplished by deceit, misrepresentation, or concealment. An allegation that defendants, "being manufacturers of oleomargarine, defrauded and attempted to defraud the United States of the tax on a quantity of oleomargarine, produced and manufactured and removed from the place of of the non-payment thereof, and such cigars shall be forfeited to the United States."' 2 U. S. v. Jacoby, Fed. Cas. 15, 462. 3 U. S. v. Edwards, Fed. Cas. 15,025. 4 U. S. v. Millard, Fed. Cas. 15,769. See U. S. v. Scheimer, Fed. Cas. 16,629. 5 Ibid. § 5061. 1 Act of Aug. 2, 1886, ch. 840, $ 8, 24 St. at L. 210, as amended by Act of May 9, 1902, ch. 784, §3, 32 St. at L. 194, Comp. St., § 6220. 2 Marhoefer v. U. S., C. C. A., 241 Fed. 48. For an indictment held sufficient, see Jelke v. U. S., C. C. A., 255 Fed. 264. 3 Tillinghast v. Richards, 233 Fed. 710. 4 Tillinghast v. Richards, 225 Fed. 226. manufacture for consumption and sale by them," sufficiently the removal and is not limited by a succeeding clause alleges is to say, they, the said defendants, then and there as "that such defendants, so engaged in carrying on the business of manufacturing oleomargarine, did manufacture, produce, and furnish for the use and consumption of others" with a description of the product. It was held that an indictment for conspiracy thus to defraud the Government insufficiently charges an overt act when it alleges that for the purpose of the conspiracy the defendants there bought palm oil, shipped this to the State of manufacture, and paid for it.6 A joint verdict upon a joint indictment for joint violations of the law is not supported by evidence which shows only separate offenses.7 8506m. Indictments under the Pure Food and Drugs Act. The Act of June 30, 1906, which is commonly known as the Pure Food and Drugs Act is constitutional.2 Congress has the § 50 6m. 768, § 1, shall be 1 Ch. 3915, 34 St. at L. Comp. St., § 8717. "It unlawful for any person to manufacture within any Territory or the District of Columbia any article of food or drug which is adulterated or misbranded, within the meaning of this Act; and any person who shall violate any of the provisions of this section shall be guilty of a misdemeanor, and for each offense shall, upon conviction thereof, be fined not to exceed five hundred dollars or shall be sentenced to one year's imprisonment, or both such fine and imprisonment, in the discretion of the court, and for each subsequent offense and conviction thereof shall be fined not less than one thousand dollars or sentenced § 2, Comp. St., § 8718. The introduction into any State or Territory or the District of Columbia from any other State or Territory or the District of Columbia, or from any foreign country, or shipment to any foreign country of any article of food or drugs which is adulterated or misbranded, within the meaning of this Act, is herein prohibited; and any person who shall ship or deliver for shipment from any State or Territory or the District of Columbia to any other State or Territory or the District of Columbia, or to a foreign country, or who shall receive in any State or Territory or the District of Columbia from any other State or Territory or the District of Columbia, or foreign country, and having so received, shall deliver, in original unbroken packages, for pay or otherwise, or offer to deliver to any other person, any such article so adulterated or misbranded within the meaning of this Act, or any person who shall sell or offer for sale in the District of Columbia or the Territories of the United States any such adulterated or misbranded foods or drugs, or export or offer to export the same to any foreign country, shall be guilty of a misdemeanor, and for such offense be fined not exceeding two hundred dollars for the first offense, and upon conviction for each subsequent offense not exceeding three hundred dollars or be imprisoned not exceeding one year, or both, in the discretion of the court: Provided, That no article shall be deemed misbranded or adulterated within the provisions of this Act when intended for export to any foreign country and prepared or packed according to the specifications or directions of the foreign purchaser when no substance is used in the preparation or packing thereof in conflict with the laws of the foreign country to which said article is intended to be shipped; but if said article shall be in fact sold or offered for sale for domestic use or consumption, then this proviso shall not exempt said article from the operation of any of the other provisions of this Act." §3, Comp. St., § 8719. "The Secretary of the Treasury, the Secretary of Agriculture, and the Secretary of Commerce and Labor shall make uniform rules and regulations for carrying out the provisions of this Act, including the collection and examination of specimens of foods and drugs manufactured or offered for sale in the District of Columbia, or in any Territory of the United States, or which shall be offered for sale in unbroken packages in any State other than that in which they shall have been respectively manufactured or produced, or which shall be received from any foreign country, or intended for shipment to any foreign country, or which may be submitted for examination by the chief health, food, or drug officer of any State, Territory, or the District of Columbia, or at any domestic or foreign port through which such product is offered for interstate commerce, or for export or import between the United States and any foreign port or country.'' § 4, Comp. St., § 8720. "The examinations of specimens of foods and drugs shall be made in the Bureau of Chemistry of the Department of Agriculture, or under the direction and supervision of such Bureau, for the purpose of determining from such examinations whether such articles are adulterated or misbranded within the meaning of this Act; and if it shall appear from any such examination that any of such specimens is adulterated or misbranded within the meaning of this Act, the Secretary of Agriculture shall cause notice thereof to be given to the party from whom such sample was obtained. Any party so notified shall be given an opportunity to be heard, under such rules and regulations as may be prescribed as aforesaid, and if it appears that any of the provisions of this Act have been violated by such party, then the Secretary of Agriculture shall power to bar from the channels of interstate commerce articles which are injurious to the public health and also such as are branded and labeled so as to deceive the purchasers thereof.3 An indictment thereunder is not invalid for failure to aver, a preliminary investigation by an officer of the Department of Agriculture, and a notice to defendants of their violation of the statute, or a failure to give them an opportunity for a hearing before the Department.* A count charging adulteration will not be supported by evidence of misbranding.5 A count for misbranding must set forth facts which show that the brand or label is false. An innuendo stating the design and intention of the use of the label or brand does not change its natural meaning." Nor, will an averment, that the defendant intended that a label or brand should be understood by the public to mean differently from its ordinary and accepted interpretation, make its use a violation of the law.8 A description in an indictment of defendants as, naming them, doing business in a specified place under the firm name and style of, then naming the firm, "hereinafter called the defendants" does not make the indictment one of the firm. The individual defendants may be separately punished thereunder.10 The indictment must show that the offense was committed by the analyst or officer making such examination, under the oath of such officer. After judgment of the court, notice shall be given by publication in such manner as may be prescribed by the rules and regulations aforesaid." § 5, Comp. St., § 8721. "It shall be the duty of each district attorney to whom the Secretary of Agriculture shall report any violation of this Act, or to whom any health or food or drug officer or agent of any State, Territory, or the District of Columbia shall present satisfactory evidence of any such viola. tion, to cause appropriate proceedings to be commenced and prosecuted in the proper courts of the Fed. Prae. Vol. III-33 United States, without delay, for the enforcement of the penalties as in such case herein provided." 2 McDermott v. Wisconsin, 228 U. S. 115, 33 Sup. Ct. 431, 57 L. ed. 754; Shawnee Milling Co. v. Temple, 179 Fed. 517. 3 Ibid. 4 Schraubstafter v. U. S., C. C. A., 199 Fed. 568. 5 U. S. v. St. Louis Coffee and Spice Mills, 189 Fed. 191. 6 Nave McCord Mercantile Co. v. U. S., C. C. A., 182 Fed. 46. 7 Ibid. 8 Ibid. 9 Schraubstradter v. U. S., C. C. A., 199 Fed. 568. 10 Ibid. within the statutory term of limitation,11 but it need not name the day of the commission.12 Upon the trial the court will take judicial notice of the facts of science and chemistry usually known in the community where the court is held; 13 including the fact "that good sound wheat of the best variety, properly and timely harvested, put through the sweat 'in the stack,' well ground and bolted, makes nutritious, wholesome, and white flour." 14 § 506n. Indictments for smuggling. An indictment for smuggling must sufficiently describe the smuggled merchandise.1 The description need not use the name contained in the schedule of the tariff. A description thereof as "four bottles of whisky' is sufficient.3 A count charging a conspiracy to smuggle merchandise need not allege the exact manner or means by which such merchandise was to be passed through the custom's lines, nor that defendants intended that the merchandise should not be invoiced.5 In an indictment for false valuation a count is sufficient which charges that the defendants caused certain described merchandise, to be passed through the Custom House and did so pass it, and introduce it into the commerce of the United States by means of a statement, invoice and affidavit, which represented the value thereof, to be a specified amount and no more; when in fact the value was a greater amount, which is specified, and that defendants did such act knowing this statement and affidavit to be false.6 It was held that an indictment for conspiracy to defraud the United States of duties on imported coal by making and causing to be made false weights of cargoes and importations of coal and of coal discharged into vessels entitled to claim a drawback was held to be sufficiently specific when it averred, as above set forth, and further charged that defendants so manipulated the scales and weights and method of weighing thereon that they 11 U. S. v. Gaag, 237 Fed. 728. 12 Ibid. 13 See supra, § 329a. 14 Shawnee Milling Co. v. Temple, 179 Fed. 517, 520. § 506n. 1 U. S. v. Powers, 263 Fed. 724. 2 Ibid. 3 Ibid. 4 U. S. v. Shevlin, 212 Fed. 413; supra, § 506c. 5 Ibid. 6 U. S. v. Abrams, 230 Fed. 310. |