Strong, Cobb & Co. v. United States

• Decision Date: 05 May 1939
• Docket Number: No. 7989.,7989.
• Citation: 103 F.2d 671
• Parties: STRONG, COBB & CO., Inc., v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

103 F.2d 671 (1939)

STRONG, COBB & CO., Inc., v. UNITED STATES.

No. 7989.

Circuit Court of Appeals, Sixth Circuit.

May 5, 1939.

Robert D. Godfrey, of Cleveland, Ohio, for appellant.

E. B. Freed, U. S. Atty., and Frank Wiedemann, Asst. U. S. Atty., both of Cleveland, Ohio, for the United States.

Before SIMONS, ALLEN, and ARANT, Circuit Judges.

ALLEN, Circuit Judge.

This is an appeal from a conviction under the first count of a criminal information which count charged that appellant, in violation of the Food and Drugs Act, 34 Stat. 768, unlawfully shipped from Cleveland, Ohio, to Oklahoma City, Oklahoma, to the Scotch-Tone Company one drum containing adulterated cold tablets, each of which tablets "was represented by the Strong, Cobb & Company, Inc., to said Scotch-Tone Company, in letters dated December 7 and December 13, 1932, to contain one grain of acetanilid and 0.625 grain of quinine sulphate, whereas, in truth and in fact, each of said tablets contained less than 1 grain, to wit, not more than 0.83 grain of acetanilid, and each of said tablets contained less than 0.625 grain, to wit, not more than 0.56 grain of quinine sulphate. * * *"

The statutes involved are Sections 2 and 8 of Title 21, U.S.C., 21 U.S.C.A. §§ 2, 8, the pertinent portions of which read as follows:

Section 2. "The introduction into any State * * * from any other State * * * of any article of food or drugs which is adulterated or misbranded, within the meaning of sections 1 to 15, inclusive, of this title, is prohibited; and any person who shall ship or deliver for shipment from any State * * * to any other State * * * any such articles so adulterated or misbranded within the meaning of said sections, 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, * * * shall be guilty of a misdemeanor * * *."

For the purposes of the act, an article is deemed to be adulterated:

Section 8. "In case of drugs: * * *

"Second. If its strength or purity fall below the professed standard or quality under which it is sold."

Appellant pleaded not guilty and waived jury trial. Appellant's motions to dismiss made at the close of the Government's evidence and renewed at the close of all the evidence were sustained as to Count 2 of the information (which charged misbranding under the statute and is not involved in this appeal), and overruled as to Count 1 which charged adulteration.

The principal contentions are:

(1) That the shipment was not made in interstate commerce within the meaning of the Food and Drugs Act.

(2) That appellant made no profession as to the standard and strength of the cold tablets.

(3) That the record does not present substantial evidence of the guilt of appellant.

Appellant's first contention, that it is not shown that it made the shipment in question, is wholly without merit. The record presents the invoices and the bill of lading of the shipment, the file copies of appellant's shipping department records, and a statement by appellant's president that he presumed the shipment was delivered to the carrier. A drum bearing a label "From Strong, Cobb & Co., Inc., Cleveland, Ohio," and containing about 17,000 cold tablets, was found on the Scotch-Tone premises in Oklahoma City, and the Scotch-Tone manager stated that the shipment had been received. The cold tablets were ordered from Oklahoma City, and unquestionably they were sent from Cleveland to Oklahoma City in interstate commerce. However, appellant maintains that under the doctrine of United States v. Knowlton Danderine Co., 4 Cir., 175 F. 1022, there was in contemplation of law no shipment in interstate commerce under the Food and Drugs Act because the tablets were shipped in bulk, to be repackaged by the Scotch-Tone Company before retail distribution. The conclusive answer to appellant's contention is that the doctrine of the Knowlton Danderine Co. case has been in effect disapproved in Hipolite Egg Co. v. United States, 220 U.S. 45, 31 S.Ct. 364, 55 L.Ed. 364. In that case the Knowlton Danderine decision was relied on as supporting the proposition that Section 10 of the Food and Drugs Act, 21 U.S.C.A. § 14, does not apply to an article of food which has not been shipped for sale, but which has been shipped solely for use as raw material in the manufacture of some other product. The court, in discussing the proposition, states that the situations covered by the statute cannot be qualified "by the purpose of the owner to be a sale," and holds that the contention of the Egg Company is untenable (220 U.S. page 55, 31 S.Ct. page 366, 55 L.Ed. 364).

Upon the second point, it is urged that the letters sent by appellant were not professions of strength or purity within the meaning of the act. The record shows that the Scotch-Tone Company ordered certain cold tablets to be manufactured by appellant, and that the formula proposed by appellant was agreed upon between the parties. It called for one grain of acetanilid and .625 grains of quinine sulphate. In the letter of December 13, 1932, appellant instructed the Scotch-Tone Company, "Advising you as to the label, you should declare 1 grain of Acetanilide and it probably would be well to declare the .625 grains of Quinine Sulphate."

Appellant...