Hardesty v. United States

• Decision Date: 18 February 1909
• Docket Number: 1,802.
• Parties: HARDESTY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

168 F. 25

HARDESTY et al. v. UNITED STATES.

No. 1,802.

United States Court of Appeals, Sixth Circuit.

February 18, 1909

H. M Johnson, for plaintiffs in error.

George Randolph, for the United States.

Before LURTON and SEVERENS, Circuit Judges, and COCHRAN, District judge.

LURTON Circuit Judge.

The plaintiffs in error were indicted for a violation of the oleomargarine act (Act Aug. 2, 1886, c. 840, 24 Stat. 209 (U.S. Comp. St. 1901, p. 2228)). The indictment contained 24 counts. The jury found Voges guilty upon each of the counts and found Hardesty guilty upon every count except the fifth sixth, seventh, eighth, ninth, twentieth, and twenty-first. The judgment of the court was that each of the plaintiffs in error pay a fine of $1,000 and be confined in the penitentiary at Atlanta, Ga., for the period of one year and one day at hard labor and pay the costs of the cause. From this judgment each of the plaintiffs in error have sued out this writ.

Upon consideration, this judgment was by this court affirmed in a per curiam opinion dealing only with a question of evidence. 164 F. 421. Upon a seasonable petition a rehearing was ordered, and the cause has again been heard at length upon every question, save the question of evidence referred to as to which no rehearing was asked. It is now urged that a judgment of imprisonment at hard labor for one year and one day in a penitentiary and a fine of $1,000 can only be supported by a conviction under the fourth and nineteenth counts.

If these counts are good, and the evidence sufficient in law there is no reason for considering the sufficiency of the other counts. Upon a writ of error, the presumption is, when there is a general verdict and judgment upon an indictment containing several counts, that the judgment was rendered upon the good counts, unless something to the contrary appears upon the record. Claasen v. United States, 142 U.S. 140, 12 Sup.Ct. 169, 35 L.Ed. 966; Ballew v. United States, 160 U.S. 187, 16 Sup.Ct. 263, 40 L.Ed. 388; Selvester v. United States, 170 U.S. 262, 18 Sup.Ct. 580, 42 L.Ed. 1029.

There were no exceptions to the charge of the court, and no error has been assigned thereon. Under such circumstances this court will not consider the charge. Alexander v. United States, 138 U.S. 353, 11 Sup.Ct. 350, 34 L.Ed. 954; Lewis v. United States, 146 U.S. 370, 13 Sup.Ct. 136, 30 L.Ed. 1011; St. Clair v. United States, 154 U.S. 135, 153, 14 Sup.Ct. 1002, 38 L.Ed. 936;

Coffey v. United States, 116 U.S. 427, 6 Sup.Ct. 432, 29 L.Ed. 681.

Neither was there any objection taken before verdict in any way to the sufficiency of the indictment. It is assigned as error that the court refused to sustain a motion made in arrest of judgment, because 'the pleader drafting the indictment failed to follow the verbiage of the act said to have been infracted,' etc. This, by the exercise of much latitude, may be regarded as an objection after verdict to the sufficiency of the indictment. By failure to demur, or enter a motion to quash, the defendant waives the right to object after verdict to matters which go to the mere form in which the offense is stated. By his delay it is properly presumed that he regards the indictment as sufficiently advising him of the offense charged to enable him to present his defense. If, however, some element of the offense has been omitted which is necessary to constitute the crime attempted to be charged, advantage may be taken even after verdict. United States v. Carll, 105 U.S. 611, 26 L.Ed. 1135; Dunbar v. United States, 156 U.S. 185, 15 Sup.Ct. 325, 39 L.Ed. 390.

The fourth and nineteenth counts of the indictment are alike, except that they charge similar offenses committed upon different days. It is only necessary to consider one of these counts. If that does not omit any essential element necessary to make out the offense, and there was substantial evidence upon which the jury might return a verdict of guilty, the judgment must be affirmed. The fourth count is in these words:

'And the grand jurors aforesaid, upon their oath aforesaid, do further present that the said Jerome E. Hardesty and the said Ben F. Voges and the said Ella Jentges on the 13th day of March, A.D. 1907, in the city of Memphis aforesaid, and within the Western Division of the District aforesaid, and within the jurisdiction of this court, were engaged in carrying on the business of manufacturing oleomargarine by then and there selling, vending, and furnishing oleomargarine for the use and consumption of persons other than the members of the family tables of the said Jerome E. Hardesty and of the said Ben F. Voges and of the said Ella Jentges, by then and there adding to and mixing with the oleomargarine so sold, vended, and furnished by them an artificial coloration that caused the said oleomargarine to look like butter of the shade of yellow; and the said Jerome E. Hardesty and the said Ben F. Voges and the said Ella Jentges then and there being persons engaged in carrying on the business of manufacturing oleomargarine as aforesaid, did at Memphis, Tennessee, aforesaid, in the district aforesaid, and within the jurisdiction of this court, on the 13th day of March, A.D. 1907, add to and mix with three hundred pounds of oleomargarine an artificial coloration, which caused the same oleomargarine to look like butter of the shade of yellow; and the said Jerome E. Hardesty and the said Ben F. Voges and the said Ella Jentges then and there had not paid on the said three hundred pounds of oleomargarine so colored by them as aforesaid the tax of ten cents on each pound as provided by law; and the said Jerome E. Hardesty and the said Ben F. Voges and the said Ella Jentges did then and there knowingly and unlawfully intend to sell, vend, and furnish the said three hundred pounds of oleomargarine so colored as aforesaid for the use and consumption of persons other than the members of the family tables of the said Jerome E. Hardesty and of the said Ben F. Voges and of the said Ella Jentges, and did then and there attempt to defraud the United States of the tax of ten cents on each pound of said three hundred pounds of oleomargarine so colored by them as aforesaid-- contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States.' This count is founded upon Act Aug. 2, 1886, c. 840, Sec. 17, 24 Stat. 212 (U.S. Comp. St. 1901, p. 2234), which is in these words:

'Whenever any person engaged in carrying on the business of manufacturing oleomargarine defrauds, or attempts to defraud, the United States of the tax on oleomargarine produced by him, or any part thereof, he shall forfeit the factory and manufacturing apparatus used by him and all oleomargarine and all raw material for the production of oleomargarine found in the factory, and on the factory premises, and shall be fined not less than five hundred nor more than five thousand dollars, and be imprisoned not less than six

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