May v. United States

• Decision Date: 19 August 1912
• Docket Number: 3,756.
• Citation: 199 F. 53
• Parties: MAY et al. v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

199 F. 53

MAY et al. v. UNITED STATES. ^[1]

No. 3,756.

United States Court of Appeals, Eighth Circuit.

August 19, 1912

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Shepard Barclay (Roland Hughes, P. H. Cullen, and Thomas T Fauntleroy, on the brief), for plaintiffs in error.

Leslie J. Lyons, U.S. Atty. (Hugh C. Smith and Thad. B. Landon, Asst. U.S. Attys., on the brief), for the United States.

Before SANBORN and HOOK, Circuit Judges, and WILLARD, District Judge.

WILLARD District Judge.

The plaintiffs in error, Thompson, Taylor, and Joseph G. May, were convicted in the court below of a violation of section 17 of the Oleomargarine Act (Act Aug. 2, 1886, c. 840, 24 Stat. 212 (U.S. Comp. St. 1901, p. 2234)). The case made by the evidence was like this: Several persons under the name of the Clayton Creamery were, during the summer and fall of 1910, engaged in business at 809 West Twelfth street, Kansas City, Mo. One of their number had a license to do business as a retail dealer in oleomargarine. They employed persons to travel over certain routes soliciting purchases of oleomargarine. Drivers were also employed to travel over these routes delivering the goods sold by the solicitors. They commenced with one delivery wagon in April, and by October the business had grown to such an extent that five delivery wagons were required. Each one of the persons engaged in that work delivered between 700 and 1,200 pounds a week. The oleomargarine thus delivered was, according to the testimony of the delivery men and the purchasers, colored so that it looked like butter. They never paid the tax of 10 cents a pound upon this product. That they intended to evade the payment of the tax is apparent from the price which they paid for white oleomargarine and the price at which they sold the colored article, which was 25 cents a pound. For the former they paid between 13 1/2 cents and 18 cents a pound; when colored so as to look like butter it was subject to an additional tax of 9 3/4 cents. They paid their solicitors at the rate of about $1.35 a day and 2 cents a pound. They paid the delivery men as high as $15 a week, and 2 cents a pound on all in excess of 750 pounds a week. That the white oleomargarine was manufactured into colored oleomargarine upon their premises is indicated by the fact that they bought large quantities of the white product and very small quantities of the colored product. Between June 21, 1910, and October 29, 1910, they bought of Swift & Co. 57,840 pounds of the white oleomargarine. They bought white oleomargarine also from Morris & Co. and from W. J. Moxley. The place where the business was carried on had been for some time prior to October 29, 1910, watched by the government revenue officials. On that day these officials accompanied by city policemen entered the place, and in the front room of the building they found Stowers, who is not one of the plaintiffs in error, sitting at a desk. They demanded admission to the rear part of the building, which was refused, and the door was broken open with an iron bar and a jimmy. On the inside of this door were two stirrups, so that two 2x4's could be dropped in them. In the room thus entered was found a large ice box about 6 feet square, running almost to the ceiling, with walls 6 inches thick. There were arrangements for locking the door of this ice box on the inside, but no arrangements for locking it on the outside. The defendant Taylor was found in this ice box mixing coloring matter and white oleomargarine. The defendant Thompson was standing near by washing his hands and arms. Six tubs of yellow oleomargarine were found in the ice box and pure white oleomargarine thrown upon the floor. A glass smeared with coloring matter and a can of coloring matter were found in the building, also boxes partially filled with yellow oleomargarine in prints, one-pound packages, also an oil and a gas stove for heating water, and 30 tubs of white oleomargarine. The window on the west side of the building was boarded up tight, and the south windows had curtains extending over the lower part probably halfway up.

The defendant Joseph G. May was not found in the building at that time, but the evidence is ample to show that he was engaged with Thompson and Taylor in the enterprise. Swift & Co. sold oleomargarine to him during the time covered by the indictment. Morris & Co. sold him oleomargarine on October 18, 1910. He employed Wilson as a driver; he figured up the accounts of Mrs. Rairdon, a solicitor, and paid her, and he signed a contract with Gardiner as a driver.

The evidence in the case, an outline of which has been given above, was entirely sufficient to convict all of the defendants of a violation of section 17. The questions to be now considered are whether the conviction upon this evidence must be set aside by reason of errors occurring in the proceedings which led up to the sentence.

Counsel for defendants commenced their attack upon these proceedings by objecting to the sufficiency of the order of the judge directing a grand jury to be summoned. Section 810 of the Revised Statutes (U.S. Comp. St. 1901, p. 627) provides that:

'No grand jury shall be summoned to attend any Circuit or District Court unless one of the judges of such Circuit Court, or a judge of such district, in his own discretion, or upon a notification by the district attorney that such a jury will be needed, orders a venire issue therefor.'

The order for this grand jury was made by Judge McPherson, judge of the District Court for the Southern District of Iowa. It appears from the record that he had been designated by the senior circuit judge to act in the Western district of Missouri during the time covered by these proceedings.

While so acting he had, by virtue of section 591 of the Revised Statutes (U.S. comp. St. 1901, p. 480), authority to discharge all the judicial duties of the judge of that district, and therefore he had authority to order a venire for a grand jury. Something is said in the brief of the defendants to the effect that this order was a personal order of Judge McPherson. Just what is meant by that is not clear. It was a written order entitled 'In the United States District Court for the Western District of Missouri. ' It was signed, 'Smith McPherson, Judge,' and was filed in the clerk's office of that court.

This was sufficient as an order of the court.

The next attack is upon the manner in which the grand jury was drawn. The jury commissioner, Welsh, was absent, and the court appointed Rust as a jury commissioner in his place. Rust and the clerk drew from the box in the manner provided by the law the names of the jurors which were placed in the venire. It is said, however, by the defendants, that Rust had nothing to do with selecting the jury. By this is meant probably that he had nothing to do with putting the names of any jurors in the box; but the fact that the names of 21 jurors were drawn out of the box is enough to show that there were sufficient names in the box to satisfy the order of the court. There is no evidence in the case to show that the names in the box were not put in there by the clerk and Welsh, the jury commissioner, at some previous time. There is nothing whatever to indicate that the clerk ever put any names in the box without the corresponding action of Welsh. Under the circumstances, it was not at all necessary that additional names should be placed therein by Rust.

It is further said that the venire was illegal because it did not contain the names of the jurors. The venire directed the marshal to summon 'the persons named in the list hereto attached. ' It seems from the proceedings at the trial that this objection was based upon the fact that the names were not inserted in the body of the venire, but were inserted in a list attached thereto. There is no merit in this claim.

The Act of May 14, 1890, c. 202, Sec. 3, 26 Stat. 106 (U.S. Comp. St. 1901, p. 386), provides as follows:

'Jurors shall be summoned for the courts hereby created (Circuit and District Courts in Missouri) as now provided by law for the summoning of jurors in the said districts, and whenever the Circuit and District Courts in either of said districts or divisions shall be held at the same time and place, jurors shall not be summoned for each of said courts, but for both of said courts, and they shall act accordingly as grand and petit jurors for both of said courts.'

The defendants say that the conviction must be set aside, because these grand jurors were summoned for the District Court, and not for the Circuit and District Courts. The law above cited means that when both courts are in session two sets of jurors shall not be drawn, one for the Circuit and one for the District Court. In the present case there is nothing to show that two sets were drawn. If it had appeared that grand jurors had already been drawn for the Circuit Court, and while discharging their duties therein these grand jurors had been drawn in the District Court, a different question would have been presented. This contention cannot be sustained.

Section 802 of the Revised States (U.S. Comp. St. 1901, p. 625) provides as follows:

'(Jurors, how to be apportioned in the district.) Jurors shall be returned from such parts of the district, from time to time, as the court shall direct, so as to be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly to burden the citizens of any part of the district with such service.'

Until the court otherwise orders, jurors must be returned from the whole district. If no order is made, the presumption is that the court has determined that drawing them from the whole district will be most favorable to an impartial...