191 F. 798 | 2d Cir. | 1911
There are three counts. The jury brought in a general verdict of guilty. The act complained of was a single one. The counts presented different phases of it. The sentence was for a single offense. Therefore, if we find that conviction was properly had on any one count, the third, for instance, the sentence was proper, and the judgment should be affirmed.
This misbranding charged under the third count consisted in labeling the bottle “Damiana — Invigorator,” when damiana was not one of the ingredients contained in the bottle. It is contended that there was a failure of proof by the government of the alleged absence of damiana. The government chemist who analyzed the contents testifled that he could not find any trace of damiana in the compound. A man who said he was the person who compounded the liquid testified that it contained a small amount of damiana leaves. The court left it to the jury to say whether in fact there was sufficient damiana in the preparation, so that the label on it, “Damiana,” was a proper label, or whether it was not, and whether the label was misleading, under the meaning of the act. This part of the charge was not excepted to; but at defendant’s request the court supplemented it with the further instruction that:
“The testimony of the experts is not binding upon the jury; that they may disregard such testimony if they choose, and find such conclusion of fact if (as?) they choose.”
Under these circumstances the verdict is conclusive as to the absence of damiana.
“See. 9. That no dealer shall be prosecuted under the provisions of this act when he can establish a guaranty signed by the wholesaler, jobber, manufacturer, or other party residing in the United States, from whom he purchases such articles, to the effect that the samo is not adulterated or misbranded within the meaning of this act, designating it. Said guaranty, to afford protection, shall contain the name and address of the party or parties making the sale of such articles to such dealer, and in such case said party or parties shall be amenable to the prosecutions, fines or other penalties which would attach, in due course, to the dealer under the provisions of this act.”
Four days before the trial, more than 18 months after prosecution was initiated, defendant obtained the signature of such a guaranty by another corporation, known as Dcimel Bros. & Co., doing a similar
The judgment is affirmed.