Brimie v. United States

• Decision Date: 06 November 1912
• Docket Number: 1,788,1,789.
• Citation: 200 F. 726
• Parties: BRIMIE v. UNITED STATES (two cases).
• Court: U.S. Court of Appeals — Seventh Circuit

200 F. 726

BRIMIE v. UNITED STATES (two cases).

Nos. 1,788, 1,789.

United States Court of Appeals, Seventh Circuit.

November 6, 1912

Gunda Gilbertson, called by the government, testified she was a clerk at 2062 Milwaukee avenue. She says: 'I never left any oleomargarine in the tubs, except once in a while Mrs Brimie would take a couple of pounds upstairs for cooking or something, or take the tub with her, and then she would destroy the stamp-- destroy the tub. * * * P. K. Brimie and K. K. Brimie lived upstairs.'

When the government rested, counsel for K. K. Brimie moved that the court direct a verdict as to his client upon counts 4 to 22, both inclusive; counts 1, 2, and 3, being those which covered the transactions at the flat over 2062 Milwaukee avenue. This motion the court denied.

Gunda Gilbertson, recalled by defendant, was then examined, and stated, among other matters: 'Off and on I took some of the colored upstairs. Once in a while she would take some tubs upstairs for kindling. If the tubs were standing on the floor and I happened to be busy, she (Mrs. Brimie) would take them upstairs before I had a chance to scratch them don't suppose she knew which (colored or white) she was taking. * * * Saw her cook up there with this butterine. She did a good deal of baking and cooking. There were quite a few up there. I saw her use some of the tubs for kindling upstairs. She cooked with butterine, and the butterine found up there was for cooking purposes. * * * She used the colored for cooking and baking-- the expensive butterine.'

Defendant K. K. Brimie, being called for himself, testified: 'I live at 2062 Milwaukee avenue. * * * Myself, P. K. Brimie and his family and two children live there, and I had a party named McLain boarding with me at that time. There were usually five or six. Mrs. Brimie cooked with butterine sometimes colored, sometimes white, it all depended how she happened to catch it in the place. * * * The tubs we would use for kindling wood occasionally, or sell them. Got four or five cents for them. Oleomargarine was used on the table by my family. * * * Lived upstairs at 2062. These bottles (coloring), introduced in evidence here, I used to see upstairs. Don't know anything else about them. I used to have them here occasionally myself. * * * Occasionally I would get the coloring matter from there two weeks, when they delivered the goods. I brought it in my pocket, and went upstairs, and put it down sometimes. * * * I didn't always keep it upstairs. I keep coloring matter downstairs, too. Q. How did these get empty upstairs? A. Well, sometimes they fall down on my-- the cork went out. Q. Five of these were found empty; five of them fell down, and the corks fell out; is that right? A. Some of them. I don't recollect the bottles, because I don't pay any attention to those things.'

The foregoing is all the evidence which tends to show a joint violation of the oleomargarine statute by the two Brimies.

Plaintiffs in error, hereinafter termed defendants, who are brothers, dealers in oleomargarine at wholesale, were indicted for violations of sections 4, 6, 13, and 17 of the oleomargarine act (Act Aug. 2, 1886, c. 840, 24 Stat. 209, 211, 212 (U.S. Comp. St. 1901, pp. 2229, 2230, 2232, 2234)). The indictment contained 22 counts. Briefly stated, count 4 charges that the defendants added to and mixed with the oleomargarine sold by them artificial coloration which caused it to look like butter, without having paid the tax required by the statute of manufacturers. Counts 5 and 6 charge defendants with producing and furnishing for consumption of others oleomargarine without paying the tax of ten cents a pound required by the statute. Counts 10, 11, 12, 13, 14, 16, 17, and 22 allege that defendants produced and packed oleomargarine in tubs, using stamps which had been used before. Counts 1, 2, 3, 7, 8, 9, 18, 19, 20, and 21 charge that defendants had in their possession oleomargarine in stamped tubs, which they had emptied without destroying the stamps or reused said empty tubs for packing oleomargarine. Count 15 was nolled. Defendants pleaded not guilty, and on trial had were jointly convicted upon all of said remaining counts.

From the evidence it appeared that Peter K. Brimie owned and operated four stores for the sale of oleomargarine, butter, and other provisions in the city of Chicago, to wit, 1041 Milwaukee avenue, 2710 West North avenue, 1342 Noble street, and 1362 South Halsted street, and that K. K. Brimie owned and operated two stores in said Chicago, viz., 2062 Milwaukee avenue, and 1742 West Eighteenth street. Neither had any interest in or control over any one of the stores of the other. They were not partners in any of the transactions named, and for the purpose of this hearing should be treated as independent dealers. Both resided over K. K. Brimie's store at 2062 Milwaukee avenue. The government's witness, Frank F. Strong, of the revenue service, testified that 'P. K. Brimie occupied that second floor and K. K. Brimie boarded with him. P. K. Brimie had a family living with him. I looked through that flat. In a small room off the dining room I found empty packages with tax-paid stamps intact on them, 10 cents a pound. I mean empty packages that had contained colored oleomargarine. ' These tubs were introduced in evidence as Government's Exhibits 5 and 6. 'They were,' he continues, 'on the floor in a small room just inside the door. The door was closed and I opened it. The tub next to it was also in the room. There were also shelves, dishes, and groceries. It looked like a regular pantry, a storeroom. * * * I found the other tub, marked for identification 'Government Exhibit 6.' It was alongside these two on the floor. All three were in the closet on the floor. This was upstairs on the second floor in the small room off the dining room. * * * I found some coloring matter (Exhibit 7 for identification). Those are the bottles which I found there. * * * They were on the first shelf just across the passageway from these tubs upstairs. They were in the same room with these tubs.' Amos W. Marston and Daniel J. Ward, both of Chicago, Ill., for plaintiffs in error.

James H. Wilkerson and Henry W. Freeman, both of Chicago, Ill., for the United States.

Before BAKER, SEAMAN, and KOHLSAAT, Circuit Judges.

KOHLSAAT Circuit Judge (after stating the facts as above).

With the exception of counts 1 and 2, the indictment, charging joint offenses, and the verdict, finding the defendants jointly guilty, are not supported by any evidence of acts committed by the defendants jointly or by one with the assistance...