Alabama Packing Co. v. United States, 12090.

• Decision Date: 23 March 1948
• Docket Number: No. 12090.,12090.
• Citation: 167 F.2d 179
• Parties: ALABAMA PACKING CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

167 F.2d 179 (1948)

ALABAMA PACKING CO. v. UNITED STATES.

No. 12090.

Circuit Court of Appeals, Fifth Circuit.

March 23, 1948.

Crampton Harris, George S. Brown and Kenneth Perrine, all of Birmingham, Ala., for appellant.

T. Vincent Quinn, Asst. Atty. Gen., Harvey H. Tisinger, Sp. Asst. U. S. Atty., of Atlanta, Ga., and Robert Giles, Asst. U. S. Atty., and John D. Hill, U. S. Atty., both of Birmingham, Ala., for appellee.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

Proceeded against under the penal provisions of the War Powers Act,¹ appellant, a federally inspected slaughterer, was charged by information containing 225 counts with two kinds of willful violations of War Food Order 75.2² relating to beef products. The counts charging one kind may be called the "set aside" counts, the other the "delivery counts". The set aside counts charged willful delivery for civilian consumption without setting aside for governmental agencies, the delivery counts charged willfully delivery for civilian consumption without delivery to governmental agencies, of a specified number of pounds of beef of a specified grade during named weeks. All set aside counts went out of the case, the defendant, convicted on 85 counts, charging civilian delivery without delivery to governmental agencies, has appealed, matching the multitude of the counts with as great a multitude of assigned errors. Assigned, arranged, and catalogued by subject matter, however, instead of by counts, they fall into four groups.

The first group deals with claimed error in overruling defendant's motion to dismiss for insufficiency each³ of the 85 counts. The insufficiencies alleged were: (1) Failure "to state facts sufficient to constitute an offense against the United States"; (2) failure to charge any criminal offense; (3) violation of the sixth amendment for failure to inform the defendant of the nature and cause of the accusation.

The second group deals with claimed errors in the giving and refusing of charges defining "willfully."

The third group deals with claimed errors in excluding evidence on its defense that its violation of the order was not willful.

The fourth group deals with claimed error in multiplying offenses. The point made here is that only thirty-four deliveries of meat for civilian consumption were dealt with in the 85 counts, whereas the counts are drawn on the theory that each delivery was made up of three grades of beef (see subd. 1, note 2), and the one delivery, therefore, constituted three separate and distinct offenses.⁴

On its first point, that the information contains no allegation of fact charging appellant with the commission of a crime and that the allegation in each count, that what was done was "in violation of War Food Order 75.2, as amended," was a mere conclusion of the pleader and added nothing to the information, appellant cites as controlling our cases, Sutton v. United States, 5 Cir., 157 F.2d 661 and Grimsley v. United States, 5 Cir., 50 F.2d 509.

We agree. It may not be doubted that unless the words "in violation of War Food Order 75.2, as amended", can be taken as supplying all of the facts essential to constitute the offense charged, each of the counts on which defendant was convicted is wholly insufficient to charge a crime. In order for defendant to have been guilty of the offense of delivering meat for civilian consumption while failing to deliver meat to governmental agencies, (1) it must have slaughtered some of that particular grade of beef in the previous weeks, and (2) it must have failed to deliver a certain percentage of that beef to governmental agencies. The information does not charge the amount of the prior weeks' slaughter, the particular grade that was slaughtered or the percentage of each grade which should have been delivered to governmental agencies.

All that is charged in each count is that defendant delivered meat for civilian consumption and did not deliver a certain poundage and grade to the government. Under War Food Order 75.2, defendant could have done just this without being guilty of any offense. To charge defendant with crime, the information should have alleged the facts of the delivery for civilian consumption and of the non-delivery to governmental agencies, and these facts must have shown that these deliveries were made under circumstances prohibited by the War Food Order.

The defendant, not only timely moved to dismiss the information for its insufficiencies, but throughout the case maintained and preserved its position. The motion should have been granted. Its dismissal was reversible error. For the failure to grant it, the judgment must be reversed.

The reversal ordered on appellant's first point has made it unnecessary for us to determine whether appellant's other points present reversible error. In view of the fact, however, that on another trial these questions will certainly again arise, we think it necessary to give brief expression to our views on them.

Upon appellant's point No. 2, charging error in the giving and refusing of charges defining "willfully," it is sufficient to say that we agree with appellant that it was error for the court to charge as it did on page 604 of the record.⁵ We agree with appellee though that on page 605⁶ the court correctly charged the meaning of "willfully" as applied to this case, and that it was not reversible error to refuse defendant's requested charges.

In insisting that in addition to knowingly doing the prohibited act, the defendant must have had an evil purpose, a guilty conscience, a sense of moral guilt, defendant goes beyond the language of the statute which...