241 F. 48 | 7th Cir. | 1917
(after stating the facts as above).
It is conceded that the count generally charges the defendants with manufacturing and producing oleomargarine and with having removed the oleomargarine from the place of manufacture, for consumption, but it is claimed that this general charge is restricted and narrowed by the specific language immediately following the general charge and beginning with the words “that is to say,” found in said count, and that the general language must be restricted and limited by the specific allegations thus appearing; that such specific language fails to charge the defendant, either with manufacturing and selling butterine or with removing the butterine either for “consumption or use” without paying the specific tax thereon.
The declarative words, “did manufacture, produce and furnish” must be viewed in the light of all the language in this count, and especially in connection with the words, “was so manufactured, produced, removed and furnished,” and with the prior words “produced and manufactured and removed from the place of manufacture,” and thus construed together, the so-called specific* language does not narrow or restrict the general charge, but amplifies and in greater particularity describes how the defendant violated the requirements of section 8 by manufacturing oleomargarine and removing it for consumption without paying the tax required by law to he paid. The grammar could be improved, but the meaning of the entire count is not left in doubt.
Counsel for the government maintain that the charge is sufficient because it follows the language of the statute; that, in charging violation of section 17 of the Oleomargarine Eaw, the indictment is sufficient if the pleader merely charges defendant with “a felonious attempt to defraud the United States out of a tax of ten cents per pound” upon a certain number of pounds of oleomargarine. In support of their contention reliance is placed upon May v. United States, 199 Fed. 42, 117 C. C. A. 420; Enders v. United States, 187 Fed. 754, 109 C. C. A. 502; Hardesty v. United States, 168 Fed. 25, 93 C. C. A. 417; United States v. Simmons, 96 U. S. 362, 24 L. Ed. 819.
The government further contends that it pleaded, with sufficient particularity, the facts which constituted the crime. An examination of the entire fourth count, as well as the contents of the first count of the indictment, sufficiently incorporated in the fourth count as to become a part of it, convinces us that the pleader was as specific and definite as the circumstances required. The pleader did not in this case restrict himself to the precise language of the statute, but described the defendants,«their place of business, the date and place where they conducted the business of manufacturing oleomargarine in violation of the law, and further defined with considerable particularity the steps taken that led up to and were a part of the “attempt to defraud.”
It is not necessary to go as far as the majority opinion in May v. U. S., supra. We conclude the fourth count is sufficient to support the .'conviction.
Appellant’s contention that the evidence fails to support the verdict is not well taken. Defendants did not testify nor did they offer any testimony to dispute the case made by the government.
Without detailing all the facts, it is sufficient tó say that the testimony, and the inference logically flowing therefrom were hardly capable of any construction consistent with defendants’ innocence as to the offenses set forth in counts 5 to 9, inclusive.
The judgment is affirmed.