Jelke v. United States

• Decision Date: 02 March 1918
• Docket Number: 2220.,2170-2176,2168
• Citation: 255 F. 264
• Parties: JELKE v. UNITED STATES and eight other cases.
• Court: U.S. Court of Appeals — Seventh Circuit

255 F. 264

JELKE v. UNITED STATES and eight other cases.

Nos. 2168, 2170-2176, 2220.

United States Court of Appeals, Seventh Circuit.

March 2, 1918

Mack, Circuit Judge, dissenting.

Thegrand jurors for the United States of America impaneled and sworn in the District Court of the United States for the Northern District of Illinois, and inquiring in and for the Eastern Division of said Northern District, upon their oath present that,

The nine plaintiffs in error and four others were indicted by the grand jury, charged with the crime of conspiracy to defraud the United States out of the ten cents per pound tax due by law upon certain colored oleomargarine, using means set forth in the indictment and hereinafter more particularly described.

Of the thirteen defendants jointly charged with the offense, one Philemon Berry, was never apprehended; the defendant Harvey P. McFarland was acquitted by the jury, and the two defendants Abner D. Mize and O. S. Martin were dismissed upon order of the court. The remaining defendants were found guilty by the jury, and each was sentenced to pay a heavy fine. The defendants Francis M. Lowry and John F. Jelke were also sentenced to the penitentiary for the terms of one and two years respectively.

Each plaintiff in error separately obtained a writ of error to review this judgment.

The indictment is as follows (the paragraphing is arbitrary, and for convenience sake follows the copy as it appears in the brief of plaintiffs in error):

'The Indictment.

Section.

1 In the District Court of the United States of America for the Northern District of Illinois, Eastern Division.

2 upon the first day of January, in the year nineteen hundred and three, and continuously from that day to the date of the return of this indictment into open court, and therefore continuously from the first day of August, in the year nineteen hundred and eight, to the first day of July, in the year nineteen hundred and eleven,

3 one John F. Jelke, one Francis M. Lowry, one Abner D. Mize, one Philemon Berry, one Harry E. Hitchins, one William M. Steele, one Harvey P. McFarland, one Hugh D. Cameron, one William L. Lillard, one William P. Jackson, one Fred Rapp, one L. B. Tullis (whose Christian name is to the said grand jurors unknown), and one O. S. Martin (whose Christian name is to the said grand jurors unknown), each late of the city of Chicago,

4 in said Eastern Division of the Northern District of Illinois, hereinafter in this indictment referred to as the defendants, at the city of Chicago, in the said division and district,

5 unlawfully, willfully, knowingly, and feloniously have combined, conspired, confederated and agreed together to defraud the said United States of the tax by law provided to become due to the said United States of ten cents per pound upon certain oleomargarine, artificially colored to look like butter of a shade of yellow,

6 which the defendants, throughout said period of time, agreed they should cause to be manufactured, produced and sold, and removed for consumption and use from the place of manufacture,

7 which oleomargarine the defendants agreed and intended they would cause to be manufactured by the addition to and the mixing with oleomargarine which was subject by law to a tax of one-fourth of one cent per pound (commonly called white oleomargarine or white goods), of artificial coloration which would cause it to look like butter of a shade of yellow, Section.

8 and, as a part of said conspiracy, the said defendants agreed that they would cause divers individuals, to wit, William A. Dwan, Benjamin Balch, Henry F. Marhoefer, Charles R. Kenyon, Charles R. Zurn, Anton T. Peterson, Frank S. Goll, William A. Schaefer, Edward Marhoefer, Harry H. Kendall, Sherwood W. Alger, Eugene Salvo, Fred Marhoefer, and J. G. Paule (whose Christian name is to the said grand jurors unknown), and other persons too numerous to be here named,

9 at divers times and on divers days throughout said period of time,

10 to add to and mix with the said white oleomargarine artificial coloration to cause it to look like butter of a shade of yellow,

11 which white oleomargarine and which artificial coloring matter to cause it to look like butter of a shade of yellow,

12 the said defendants agreed among themselves to furnish and cause to be furnished

13 to the said William A. Dwan, Benjamin Balch, Henry F. Marhoefer, Charles R. Kenyon, Charles R. Zurn, Anton T. Peterson, Frank S. Goll, William A. Schaefer, Edward Marhoefer, Harry H. Kendall, Sherwood W. Alger, Eugene Salvo, Fred Marhoefer, and J. G. Paule (whose Christian name is to the said grand jurors unknown), and other persons too numerous to be here named,

14 and further as a part of said conspiracy, the defendants agreed among themselves

15 (a) to furnish to the said individuals last above named and referred to, tub liners to be used by the said individuals last above named and referred to in packing in tubs the said oleomargarine after the addition of artificial coloration causing it to look like butter of a shade of yellow as aforesaid, and wrappers of paper to be used by the said individuals last named and referred to in packing in pound packages and packages of other weight the said oleomargarine after it had been artificially colored, as aforesaid,

16 and further as a part of said conspiracy.

17 (b) to cause the said individuals last named and referred to to sell and furnish for profit to consumers and persons other than their own families and remove for consumption and use from the place where such coloring matter was added to and mixed with said oleomargarine, the said oleomargarine thus artificially colored,

18 without paying and causing to be paid,

19 and intending that they, the defendants, and the said individuals, last hereinabove named and referred to, should not pay to the United States, and intending that no payment whatever should be made by any person, firm or corporation to the said United States of, the tax, which would then, to wit, at the time of such removal for sale and for consumption and use, as aforesaid, become due to the said United States, to wit, the tax of ten cents per pound, as provided by law,

20 and intending that the said United States should be defrauded out of the money by law due the said United States for such tax.

21 And the grand jurors aforesaid, upon their oath aforesaid, do further present, that in pursuance of the said conspiracy and in order to effect the object of the same, the said defendants* on, to wit, the eleventh day of October, in the year nineteen hundred and nine, at the city of Chicago, in the division and district aforesaid, knowingly, willfully and feloniously delivered and caused to be delivered to the said William A. Dwan, a large quantity, to wit, nine hundred and sixty pounds, of white oleomargarine and sufficient coloring matter to color the same to look like butter of a shade of yellow.

22 (Same as section 21 down to star), on, to wit, the eleventh day of October, in the year nineteen hundred and nine, at the city of Chicago, in the division and district aforesaid, knowingly, willfully, and feloniously delivered and caused to be delivered to the said Benjamin Balch, a large quantity, to wit, eighty pounds of white oleomargarine and sufficient coloring matter to color the same to look like butter of a shade of yellow.' [255 F. 268] Paragraphs 23 to 38, inclusive, allege defendants at different times and at different places delivered large quantities of white oleomargarine with free coloring material to divers persons named therein.

Section.

39 '(Same as in section 37 down to the star) the said Harvey P. McFarland (defendant herein) on, to wit, the twenty-sixth day of August, in the year nineteen hundred and nine, at the city of Chicago, in the division and district aforesaid, knowingly, willfully and feloniously did prepare and cause to be prepared a certain writing and ticket called a sales ticket, which was of the tenor following, to wit:

John F. Jelke Co. City Sales 40 Date, 8/26/09. No. 4844. Chicago. Sold to New City Creamery 4803 Ashland Ave. Ch'k'd by A. W. ------ ------ .............................Fig. by............ 905 0 ------ ------ Via..................................Salesman F.......... 109 35 Original 3213. --------------------------------------------------------------------------- TABLE CONTINUED --------------------------------------------------------------------- Packages Packages Packages Pounds Pounds Price Oleo. Misc. Weight Misc. Oleo. --------------------------------------------------------------------- 1 tub 1st Prize 60# 24 3/4 14.85 10 tubs Fancy 60" ea 600 15 90.00 1 crate 5# Fibre boxes 4.00 200 60 paper circles 2.50 .50 M ------ 109.35 ---------------------------------------------------------------------

Paragraphs 40 and 41 are similar in purport to paragraph 39 and charge McFarland with having prepared a sales ticket to the New City Creamery on a date different than that set forth in paragraph 39.

42 'And so the grand jurors aforesaid, upon their oath aforesaid, do say that the said John F. Jelke, Francis M Lowry, Abner D. Mize, Philemon Berry, Harry E. Hitchins, William M. Steele, Harvey P. McFarland, Hugh D. Cameron, William L. Lillard, William P. Jackson, Fred Rapp, L. B. Tullis, and O. S. Martin, in the manner and form aforesaid throughout the period of time from the first day of January in the year nineteen hundred and three to the first day of July, in the year nineteen hundred and eleven, continuously have conspired, combined, confederated and agreed together to defraud the said United States in the manner as aforesaid; against the peace and dignity of the said United States and contrary to the form of the...