Simpson v. United States

• Decision Date: 08 May 1917
• Docket Number: 2937.
• Citation: 241 F. 841
• Parties: SIMPSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

241 F. 841

SIMPSON v. UNITED STATES.

No. 2937.

United States Court of Appeals, Sixth Circuit.

May 8, 1917

Jas. E Mathews, of Cleveland, Ohio, for plaintiff in error.

F. B Kavanagh, Asst. U.S. Atty., of Cleveland, Ohio.

Before KNAPPEN and DENISON, Circuit Judges, and SATER, District Judge.

KNAPPEN Circuit Judge.

Plaintiff in error was convicted, upon trial by jury, under an information charging the interstate shipment of certain drugs in violation of Food and Drugs Act June 30, 1906, c. 3915, 34 Stat. 768, as amended by Act Aug. 23, 1912, c. 352, 37 Stat 416 (Comp. St. 1916, Secs. 8717-8728), alleged to be misbranded in that the label of the carton or package containing the drug (as well as a circular therein) contained false and fraudulent statements regarding the curative or therapeutic effect of the drugs. But two grounds for reversal are presented.

1. The first ground is that the information was insufficient in law. It was accompanied by affidavits of four persons, relating in part to the actual shipment of the offending articles and the presence in the inclosed packages of the label and circular referred to, and in part to the chemical analysis of the drugs and the alleged falsity of the claims made as to their therapeutic effect. The information was not sworn to, but states that the court was 'given to understand and be informed upon the oaths of * * * whose affidavits are hereto attached and made a part hereof, as follows, to wit. ' Two of the affidavits were sworn to before notaries public. It is urged that the information was insufficient because not upon the oath of the prosecuting officer, but solely upon oaths of the witnesses by affidavit, and that oaths taken before notaries public were invalid.

We need not consider whether the objection would have been good had it been made in the court below. Defendant in fact pleaded not guilty to the information, without demurring or moving to quash, and the record does not indicate that the attention of the district court was ever directed to the alleged insufficiency of the information. Unless it was void, the question presented cannot for the first time be raised in the appellate court, unless a refusal to so consider it would shock the judicial conscience. Keliher v. United States (C.C.A. 1) 193 F. 8, 10, 114 C.C.A. 128. Had there been no affidavit of witnesses, the information would not have been void for lack of the oath of the prosecuting counsel (Weeks v. United States (C.C.A. 2) 216 F. 292, 132 C.C.A. 436, L.R.A. 1915B, 651); and we do not regard the information as showing that it was filed without investigation by the District Attorney. See Frank v. United States (C.C.A. 6) 192 F. 864, 867, 113 C.C.A. 188. The objection is purely technical and without merit, and was waived by pleading to the information without raising objection. People v. Harris, 103 Mich. 473, 61 N.W. 871; People v. Turner, 116 Mich. 390, 74 N.W. 519; Bartlett v. State, 28 Ohio St. 669.

It is also urged that the information does not charge defendant with knowledge of the alleged false and fraudulent character of the representations made. We assume, for the purposes of this opinion, that such allegation is necessary. The gist of these representations, so far as need now be stated, is that the article was 'a valuable remedy for lost nervous strength and treatment of all diseases which are really the result of diseases of the brain, spinal cord, medulla oblongata and the nerves given off from each of them. ' The information alleged that these representations were (omitting the words we have bracketed) 'false and fraudulent in this, that the same were applied (by defendant) to said article knowingly, and in reckless and wanton disregard (on defendant's part) of their truth or falsity, so as to represent falsely and fraudulently to the purchaser thereof, and create in the minds of purchasers thereof an impression and belief that it was,' etc.

The criticism we are now considering would be fully met had the information actually contained (as it did not) the words above bracketed. But the defect was not substantial; it was only formal. The information charged that the shipment was made by defendant 'trading as Dr. C. M. Simpson's Medical Institute,' and that the name of the article given on the label of the carton was 'Dr. C. M Simpson's Cerebro-Spinal Nerve Compound. ' The natural construction would be that it was defendant whose knowledge and reckless and wanton disregard of the truth was intended to be charged. The federal statute (Rev. Stat. 1025 (Comp. St. 1916, Sec. 1691)) expressly provides that an indictment shall not be affected 'by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant. ' Rosen v. United States, 161 U.S. 29, 16 Sup.Ct. 434, 40 L.Ed. 606; Price v. United States, 165 U.S. 311, 17 Sup.Ct. 366, 41 L.Ed. 727; Tyomies Pub. Co. v. United States (C.C.A. 6) 211 F. 385, 389, 128 C.C.A. 47. The rule applicable to an information is no less liberal. Its averments of facts constituting the offense need be only so certain and specific as fairly to inform defendant of the crime intended to be alleged, and as to make the judgment of conviction or acquittal thereon a complete defense to a second prosecution of the defendant for the same offense. United States v. Hess, 124 U.S. 483, 486, 487, 8 Sup.Ct. 571, 31 L.Ed. 516; Stokes v. United States, 157 U.S. 187, 15 Sup.Ct. 617, 39 L.Ed. 667; Bennett v. United States (C.C.A. 6) 194 F. 630, 632, 114 C.C.A. 402; Hocking Valley R.R. Co. v. United States, 210 F. 735, 127 C.C.A. 285. It...