United States v. Baumert

• Decision Date: 23 May 1910
• Citation: 179 F. 735
• Parties: UNITED STATES v. BAUMERT et al.
• Court: U.S. District Court — Northern District of New York

179 F. 735

UNITED STATES v. BAUMERT et al.

United States District Court, N.D. New York.

May 23, 1910

George B. Curtiss, U.S. Atty., for the application.

RAY District Judge.

The information, as to all material allegations, is made on information and belief, and charges the shipping, etc., in interstate commerce between Antwerp, N.Y., and points in the state of Pennsylvania, of misbranded cheese, in violation of the so-called 'Pure Food and Drug Law' (Act June 30 1906, c. 3915, 34 Stat. 768 (U.S. Comp. St. Supp. 1909, p 1187)).

Annexed to the information which is verified by the oath of Geo. B Curtiss, United States attorney for the Northern district of New York, to the effect that the allegations are true except as to the matters therein stated to be alleged upon information and belief, and that as to those matters he believes it to be true, are: (1) Letter of Wade H. Ellis Acting Attorney General of the United States, inclosing 'copy of report and other documents transmitted to this department by the Secretary of Agriculture relative to the apparent violation of the food and drug act by F. X. Baumert & Co., New York, in the shipment of misbranded cheese from Antwerp, N.Y., to Detroit, Mich.,' and directing that 'immediate and proper action' be taken in the matter. Also, what purports to be a letter from F. Baumert & Co., under date of August 3, 1909, to the chief of the Food and Drug Inspection Laboratory, New York City, stating that the firm has been charged with making and selling a misbranded 'Neufchatel cheese,' but taking issue with and denying the charge as to misbranding, while admitting the firm made and sold the cheese of which the sample referred to was a part. There is no proof that the defendants, or the firm of which they are members, wrote or authorized this letter. Also, a statement signed by J. G. Riley, Analyst, United States Department of Agriculture, in which he says he has examined a sample of cheese labeled: 'Crown Brand Neufchatel Cheese. Made in the state of New York from partly skimmed milk'-- and which he believes to be the sample purchased from McCann & Co. at Pittsburgh, Pa., on or about June 25, 1909, by Inspector C. A. Meserve of the United States Department of Agriculture and designated by him as 'I.S. No. 26086-a'; and that he has made a careful analysis of same and found that 'it is not Neufchatel cheese.' This statement is not in the form of an affidavit, has no venue, but, after the signature of J. G. Riley, contains the following certificate, 'Subscribed and sworn to before me at Washington, D.C., this 5th day of November, 1909.' Signed: J. G. Shebley, Notary Public. The seal of the notary, bearing the words 'J. G. Shebley, Notary Public,' is attached. There is nothing to show that Shebley was a notary when he certified the paper, or that he was authorized to take affidavits or administer oaths in Washington, D.C. There is also attached a statement purporting to be that of McCann & Co. showing where that firm purchased the cheese, and what purports to be a letter of F. X. Baumert & Co., dated July 31, 1909, addressed to chief of the United States Food and Drug Inspection Laboratory, Pittsburgh, Pa., referring to the specimen 'I.S. No. 26086-a,' and admitting the making of the cheese from which that specimen came and the selling of same to McCann & Co., but asserting that such firm would present proof that the finding of the analyst of the department was an error. There is no proof or even affidavit that the letter was written by the firm or authorized by it. The information expressly states that these letters are the sole basis of the information and belief of the United States attorney.

But assuming that the letters show they were written by the defendants' firm, they do not admit any offense against the law, but deny. At most they admit the making and sale in interstate commerce of the cheese while denying that same offends against the law. They assert it was and is just what the brand says, domestic made Neufchatel cheese; that is 'Crown Brand Domestic Neufchatel Cheese. Made in the state of New York from partly skimmed milk.'

We have, then, as the only evidence (if it be evidence) of the commission of the offense charged in the information on information and belief, this statement of Analyst Riley verified as stated, who says the cheese 'is not a Neufchatel cheese.'

This paper is filed with and attached to the information. On this information, supported by these papers and others, now referred to, can this court issue process and cause the arrest of the defendant accused?

A supplemental information on information and belief has annexed the affidavits of James W. Chesewright, made at Pittsburgh, Pa., and that of Charles A. Meserve, made at the same place, the last being taken before a United States commissioner, showing the sale and purchase of the sample of cheese referred to. It raises the plain question whether an information made solely on information and belief and giving as the sources of such information certain letters and affidavits taken out of court and outside the jurisdiction of the court which are attached to and filed with the information, such affidavits tending to support the charge, is sufficient. There is no substantial doubt that offenses against this act may be prosecuted by information duly filed.

It is clear that the court has no jurisdiction to direct the issuance of a warrant on an information filed, made on the information and belief of the United States attorney alone. It must be supported by proof establishing probable cause; that is, by legal evidence that a crime has been committed and that there is probable cause to believe the accused guilty of the commission thereof.

The Constitution of the United States (Amend. 4) has wisely provided that:

'No warrant shall issue but upon probable cause supported by oath or affirmation.'

However convenient and inexpensive it might be to ignore this provision of the Constitution, a due regard for the rights of the citizen and the danger of gross abuses of the old system which had its basis in the now exploded idea that the king-- that is the government-- can do no wrong, led to the adoption of this amendment to the Constitution. But it may be and is contended that this provision is complied with when an information setting forth on information and belief the facts claimed to exist is filed accompanied by the mere affidavits of third persons cognizant of the facts, taken out of court by any officer authorized by law to take and certify affidavits; that in such case the information is supported 'by oath or affirmation'; and that it is not necessary that the evidence be given in court or before the officer issuing or directing the issuance of the warrant. In short, the contention is that affidavits taken in various states, judicial districts, and jurisdictions before United States commissioners, notary publics, and judges, may be filed with the information made solely on information and belief, and that the charge made in the information is then supported 'by oath or affirmation.' If this construction is to prevail, this information is sufficient, provided a mere signed statement with a certificate attached signed by some commissioner, notary, or judge, that it was sworn to on a certain day at a certain place, constitutes a legal affidavit.

Hughes, Federal Procedure, p. 43, says:

'A complaint to justify an information must show personal knowledge and probable cause.'

On this point the author sites Johnston v. U.S., 87 F. 187, 30 C.C.A. 612; U.S. v. Tureaud (C.C.) 20 F. 621. The Johnson Case is not in point here, as there the affidavit of Dudley in support of the information, which was signed but not verified by the United States attorney, so far as appears, was taken before the judge of the District Court who issued the warrant. The affidavit stated conclusions merely and not facts. The court said:

'The affidavit on which the information was based was wholly insufficient to warrant the arrest and trial of the plaintiff in error, and is altogether too general in terms as to the offense against the United States said to have been committed, and it shows no knowledge, information, or even belief on the part of the affiant as to the guilt of the party charged beyond the bare statement that 'there is probable cause to believe that the said offense has been committed by P. T. Johnston.' However false the affidavit may be, it would be next to impossible to assign and prove perjury on it.' While the case speaks of affidavits as the foundation of an information, it is silent on the question whether they must be taken before the court or judge issuing the warrant. United States v. Tureaud (C.C.) 20 F. 621, is in point on the question that an information on information and belief and supported by an affidavit or affidavits made on information and belief is sufficient, but is not in point on the question whether or not the affidavits must be taken before the judge or court granting the warrant, except as we might infer that an affidavit taken before a United States commissioner will be deemed sufficient. In that case the affidavit in support of the information was taken before a United States commissioner and not the judge; but the point was not raised, so far as appears, that it should have been taken by the judge holding the court, or directing the issuance of the warrant. In that case the court said:

'The procedure by information, therefore, after it was acted upon by this amendment, lost its prerogative function or quality. It could not thereafter be the vehicle of preferring any arbitrary accusation-- not by the king, because we have in the department of criminal law no successor to him, so far

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