Hartman v. United States
| Decision Date | 09 April 1909 |
| Docket Number | 1,809. |
| Citation | 168 F. 30 |
| Court | U.S. Court of Appeals — Sixth Circuit |
| Parties | HARTMAN et al. v. UNITED STATES. |
Edwin Sutherland, for plaintiffs in error.
W. L Day and T. H. Garry, for the United States.
Before LURTON and SEVERENS, Circuit Judges, and KNAPPEN, District judge.
The plaintiffs in error were jointly indicted and convicted for violation of Act Aug. 2, 1886, c. 840, Sec. 1, 24 Stat. 209 (U.S. comp. St. 1901, p. 2228), as amended by Act May 9 1902, c. 784, Sec. 1, 32 Stat. 193 (U.S. Comp. St. Supp. 1907, p. 636), known as the 'Oleomargarine Act.' The indictment contained 18 counts. Count 1 charges a violation of section 3 of the act by carrying on the business of manufacturers of oleomargarine without having paid the special tax required by law. Counts 2, 3, 4, and 5 charge violations of the act by failing to destroy stamps on emptied oleomargarine packages. Counts 6 to 9, inclusive, charge a violation of the thirteenth section of the act by refilling stamped packages which had contained tax-paid oleomargarine. Counts 10 to 14, inclusive, charge a violation of section 6 of the act. Counts 15, 16, and 17 charge violations of section 5 of the act by failing to keep books, give the required bond, and put up sign. Count 18 charges a violation of section 17 by defrauding or attempting to defraud the United States of the tax on colored oleomargarine produced. The defendant Henry Hartman was found guilty on all the counts. The defendant Frank Hartman was found guilty upon counts 6 to 14, inclusive, and not guilty upon the other counts. Each of the defendants was adjudged to pay a fine of $1,000 and to be imprisoned in the Cleveland workhouse for a period of six months.
A motion that the government be compelled to elect upon which count it would proceed or demand a conviction was overruled. There was no reversible error in this. The offenses joined were merely statutory misdemeanors of the same class, and the fact that various penalties were attached, by which imprisonment in a penitentiary was possible under some of the counts, did not prevent a joinder of counts under Revised Statutes, Sec 1024. Morris v. United States (C.C.A.) 161 F. 672. Both defendants were found guilty under counts 10 to 14, inclusive. Those counts rest upon section 6 of the oleomargarine act, and charge the offense of packing oleomargarine in old stamp-paid packages which had been emptied and upon which the stamps had not been destroyed. The judgment awarded was one which might have been imposed under the general verdict upon these counts, irrespective of any other. When there are a number of counts in an indictment, and the verdict is a general one, a judgment which might have been awarded under any one of the counts will be applied, upon a writ of error, upon any count good in law upon which there was evidence to go to the jury. The question was given full consideration in a similar case, in which the opinion of this court has just been filed. Hardesty et al. v. United States, 168 F. 25. It follows, therefore, that we need consider only those counts upon which both defendants might have been legally convicted, namely, those from 10 to 14, inclusive.
Counts 10 to 14, inclusive, charge violations of section 6 of the law by packing oleomargarine in packages theretofore used for that purpose. Under that section manufacturers are required 'to pack in firkins, tubs, or other wooden packages not before used for that purpose,' and that such manufacturers and wholesale dealers shall sell 'only in original stamped packages.' It also provides that retail dealers shall sell 'only from original stamped packages, in quantities not exceeding ten pounds, and shall pack the oleomargarine sold by them in suitable wooden or paper packages which shall be marked and branded as the Commissioner of Internal Revenue * * * shall prescribe. ' It concludes as follows:
'Every person who knowingly sells or offers for sale, or delivers or offers to deliver, any oleomargarine in any other form than in new wooden or paper packages as above described, or who packs in any package any oleomargarine in any manner contrary to law, or who falsely brands any package or affixes a stamp on any package denoting a less amount of tax than that required by law, shall be fined for each offense not more than one thousand dollars, and be imprisoned not more than two years.'
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