United States v. Krumm
| Decision Date | 08 February 1921 |
| Docket Number | 8. |
| Citation | 269 F. 848 |
| Parties | UNITED STATES v. KRUMM. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Charles D. McAvoy, U.S. Atty., and Edward S. Kremp, Asst. U.S. Atty both of Philadelphia, Pa.
Frederick L. Breitinger, of Philadelphia, Pa., for defendant.
The United States attorney filed an information against the defendant, charging violation of the Food and Drugs Act (Comp. St. Secs. 8717-8728) in shipping and delivering from Philadelphia, Pa., to Baltimore, Md., a number of packages each containing an article of food labeled, marked, and branded as 'Krumm's Macaroni.' The first count charged that the article of food was adulterated, 'in that a substance, to wit, a product prepared from flour, had been substituted in whole or in part for macaroni, to wit, a product prepared from semolina, which the article purported to be. ' The second count charged that the article of food was misbranded, in that the word 'macaroni' 'was false and misleading, in this That it represented that said article was macaroni, to wit, a product made from semolina, whereas, in truth and in fact, said article was not macaroni, to wit, a product made from semolina, but was a product made from flour.'
The defendant demurs, upon the ground that the information does not set out any offense against the United States; that it is not averred that the packages were original unbroken packages; that it is not averred that semolina is not flour, or a product made from flour; that it is not averred that macaroni is a product wholly prepared from semolina; that the definition of the word 'macaroni,' as given in the information, is not in consonance with its meaning as accepted by the general public; and that it is not set forth that the article of food contained in the packages was dangerous to the health or welfare of the people, or intended to deceive the purchaser.
The first ground of demurrer may be dismissed, for the reason that, while the Food and Drugs Act prohibits shipping or delivering for shipment in interstate or foreign commerce any article of food which is adulterated or misbranded, it does not restrict the offense of shipping or delivering for shipment to articles in original unbroken packages; the restriction to original unbroken packages applying only to those who receive in interstate commerce and, having received, deliver in original unbroken packages any adulterated or misbranded articles.
As to the averments in relation to the substance contained in the packages, I think they are lacking in that particularity in both counts which should be...
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