| 2d Cir. | May 2, 1910
(after stating the facts as above). The section declared on (section 2) imposes a penalty on “any person who shall ship or deliver for shipment from any state * * * to any other state * * * any article of food or drug so * * * misbranded.” It was proved that the words “Olio per Insalata” mean “oil for salad” or “salad oil” and the trial judge held, and so charged the jury, that “as a notorious fact salad oil prima facie means olive oil,” but allowed the defendant to show if he could that “it means something else because of recent events which have perhaps rendered olive oil more difficult to obtain, or that other food elements have come to be known as salad oil.” No such proof was introduced,
The evidence showed that the articles complained of were sold and shipped by the “Standard Trading Co.” of which defendant was an employé — its “manager.” He negotiated the sale. It did not appear whether the concern was a corporation, or a firm, or an individual trading under this corporate name; nor whether the defendant had any interest in the concern other than as employé. It is contended that the Circuit Court should have directed a verdict of not guilty at the close of the case on the ground that there was not sufficient proof to sustain a finding that he personally shipped the goods or caused them to be shipped. The plaintiff in error is in no position to make such contention in this court. At the close of the government’s case motion was made to dismiss the information upon several grounds; one of which was “that it has not been shown that the defendant Brina shipped these goods to any place out of the state'.” The motion was denied and exception reserved. Testimony was thereafter introduced by the defendant on the various issues in the case, part of it being directed to the matter of shipment. At the close of the case defendant renewed his motion to dismiss the information, - but only “on the ground that it had not been shown by any evidence that the can which was used •in this case deceived any of the public.” This motion was denied, the court stating that it was “the only question for the jury.” No objection was taken on the ground that shipment was not proved, nor was-there'any request to go to the jury on that question. There is, therefore, no exception in the case which raises the point now relied upon.'
The judgment' is affirmed.