Mitchell v. United States

• Decision Date: 11 January 1916
• Docket Number: 58.
• Citation: 229 F. 357
• Parties: MITCHELL v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

229 F. 357

MITCHELL v. UNITED STATES.

No. 58.

United States Court of Appeals, Second Circuit.

January 11, 1916

George Gordon Battle, of New York City (I. H. Levy, of New York City, of counsel), for plaintiff in error.

H Snowden Marshall, U.S. Atty., and Roger B. Wood and B. A Matthews, Asst. U.S. Atty., all of New York City.

Before LACOMBE, COXE, and ROGERS, Circuit Judges.

LACOMBE Circuit Judge.

Shannon was a coffee broker doing business as Peter J. Shannon & Co. William Mitchell was a partner with his brother George, under the firm name of Mitchell Bros., as importers and jobbers of tea and coffee. George attended to the tea side of the business; William to the coffee side.

There are five assignments of error. The first three present in one form or another the proposition that there was not evidence sufficient to send the cause to the jury. The fifth refers to the exclusion of certain testimony; as it was not argued orally or on the brief, it need not be considered. The fourth reads as follows:

'Fourth. The court erred in admitting in evidence, over the objection of the defendant, evidence of other alleged offenses of misbranding on the part of the defendant, William L. Mitchell, or on the part of Mitchell Bros.'

This assignment covers the introduction of what are known as Exhibits 18 to 25, inclusive. This fourth assignment may be first considered.

In order to appreciate the precise point thus raised, it will be necessary to set forth much of the testimony in a condensed form.

Heidmann & Co., of Milwaukee, wrote to Shannon, asking him to send them three or four samples of Bogota coffee. He sent them four samples, separately numbered, all described as Bogota at 17 1/4 cents for each sample. Heidmann & Co. selected sample No. 11, 84 bags, and ordered Shannon to get it. Shannon sent them a sales memo. of 84 bags Bogota at 17 cents as sold to them by Mitchell Bros.-- also a bill of Mitchell Bros. May 25, 1914, for the same 84 bags Bogota. Eighty-four bags were shipped to them, but were seized on the way as misbranded; the bags were all branded 'P. A. L. Bogota,' which means Pedro A. Lopez, of Bogota. The samples which Shannon sent were obtained from various chops of Caracas coffee exposed in Mitchell's office; No. 11 was a mixture of two of these chops. The Caracas coffee represented by these samples was the property of Mitchell Bros. and in warehouse. Two chops, amounting in all to 96 bags, were mixed and shipped by Mitchell Bros. in the 84 bags marked 'P. A. L. Bogota.' An order was sent by Mitchell Bros. to the warehouse to mix these two lots of 38 and 59 bags, respectively, and to put the contents into 84 bags, marked 'P. A. L. Bogota.'

Upon the books of Mitchell Bros. and in the record of the warehouse the two lots (38 bags and 59 bags) were marked as having come from Caracas. The 84 bags into which the mixed lot was to be put were furnished to the warehouse company by an employe of Mitchell Bros., already marked 'P. A. L. Bogota.' It is not disputed that Shannon and one or more of Mitchell Bros.' employes, with an intention 'to put something over on Heidmann & Co.,' did mix these two lots of Caracas coffee, did brand them as 'P. A. L. Bogota,' indicating that they were from Pedro A. Lopez, of Bogota, and did send them into interstate commerce, thereby violating the Food and Drug Act.

The question in the case were whether defendant Mitchell knew of this performance, and whether he conspired with the others to have the coffee thus misbranded. There were various bits of proof, from which, according to the government's contention, the jury might infer that the particular single offense against the Food Act was a matter within Mitchell's knowledge and brought about with his procurement. A government inspector also testified that at an interview he had with defendant Mitchell on June 9th (after the coffee was seized) Mitchell told him that, after he had agreed to sell these two lots of Caracas coffee to Shannon's customer (he did not give Shannon's name, but called him merely the broker), the latter told him they would have to be dumped and mixed, and that Shannon would share with Mitchell one-half the cost of this; also that Shannon told him (Mitchell) the bags would have to be marked 'P. A. L. Bogota.'

Down to the time when the government rested its case there had been no evidence introduced to show other instances of misbranding initiated or carried out in defendant's office. Moreover, with the testimony of the government inspector as to Mitchell's admissions, there was a prima facie case on which the government was entitled to go to the jury.

Defendant then took the stand. He denied so much of the story of the inspector as stated that he (Mitchell) had told the latter that Shannon said anything to him about putting the particular lots in P. A. L. Bogota bags. He admitted that the two lots of Caracas coffee (charged as the overt act) had been mixed and packed in bags marked 'P. A. L. Bogota,' but asserted that this was wholly without his knowledge; that it had been 'put over him' by persons in his office, acting secretly with the brokers; and that he was very indignant when he found it out. On cross-examination the government got him to identify a pile of orders to the New York Dock Company (the warehouse company) as having passed through his office signed by Von Thaden, the shipping clerk. They were in the same form as the order (Exhibit 10) directing that the 97 bags of Caracas coffee be dumped, mixed, and bagged as 84 bags Bogota P. A. L., the overt act charged in the indictment. These eight documents were then offered in evidence-- they were objected to as incompetent, irrelevant, and not sufficiently proved. The court admitted them, and such admission is the subject of the fourth assignment of error. The trial judge carefully stated his reason for admitting them as follows:

'The purpose is this: As to the transaction in suit the defense of the witness is that he knew nothing about this; that it went through his office without any knowledge upon his part at all as to these nefarious features in the sale of the coffee; that he sold it as Caracas, but he knew nothing about the other transaction. Of course, if they can show that it was not an unusual thing for transactions of that kind to go through his office, it is a circumstance for the jury to determine whether they would be likely to go through his office without this defendant having knowledge of it. It is simply a circumstance for the jury to consider.'

Later on, in admitting one of these orders, the court said:

'It is merely evidence of circumstances for the jury bearing on the question whether the transaction involved could likely have gone through the witness' office without his knowledge; evidence bearing on the question of the witness' knowledge.'

Still later, when the government undertook to offer other orders similar to the eight (Exhibits 18 to 25), the court said:

'I do not think it is necessary to put in too many instances of this kind. They are only admitted as bearing on the question of the knowledge and intent of this defendant of the transaction in question. He is not on trial for anything involved, except in this present

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