United States v. Hopkins

228 F. 173 | S.D.N.Y. | 1912

HOUGH, District Judge

(after stating the facts as above). [1] It is-suggested that, so extraordinary are. the prosecutions or proceedings brought under the Pure Food Law, some new procedure should be brought out in respect of them, apparently for the purpose of preventing a trial occurring on the criminal side of the court until after the facts have been looked into by the court itself. This is a startling innovation, and so far as I am concerned might be disposed of by expressing my unwillingness to attempt such new procedure, and my belief that juries are far more apt to be extremely tender of defendants and their rights, real or pretended, than any judge could be.

But it is perhaps advisable to- indicate, even at some length, the view that no such method of judging facts is permitted by the criminal law. It is the invariable practice in this district to prosecute under the Pure Food Law by criminal information; that is, the government alleges a misdemeanor.

It is not open to doubt that Congress has created several possible misdemeanors by the passage of the act in question. Procedure by criminal information is common-law practice, and, being a matter of practice, it needs no statute to support it. Originally it was a concurrent remedy with indictments for all misdemeanors except misprision of treason. In practice, even before the independence of the United States, leave to' file informations was seldom sought by the Attorney General, except at the instance of a high officer of government.

Informations under the Pure Food Law are perfect representatives of this ancient practice, being brought by the District Attorney under leave of court at the instance of the Department of Agriculture. In the United States the function of an information is limited, however, by the constitutional provision that no one shall be held to answer for a “capital or otherwise infamous crime,” except on presentment by the grand jury. On this subject, generally, see 2 Hawk. P. C. c. 26, § 3, page 326 et seq.; United States v. Waller, 1 Sawy. 701, Fed. Cas. No. 16,634; Ex parte Wilson, 114 U. S. 425, 5 Sup. Ct. 935, 29 L. Ed. 89; United States v. De Walt, 128 U. S. 393, 9 Sup.Ct. 111, 32 L. Ed. 485.

An information, therefore, being no novelty, it does not become one by being applied to a new misdemeanor. The course of trial is and must remain that of an indictment. It is therefore necessary to inquire what pleas are possible either to an indictment or information, there being no such thing known as an answer in criminal law in the sense in which that word is used on the civil side. All possible pleas on the criminal side of this court must be either in abatement, in bar, or the general issue.

A motion to quash is not a pleading, and therefore is not included, and jurisdictional pleas, which are sometimes given as a separate class, are really either in abatement or bar according to whether the objection is to a particular court or to courts in general.

[2] Tested by these rules, this .defendant has (1) pleaded the general issue, which is of course proper and sufficient; (2) the statute of limitations is raised by special plea, which is permissible, but not necessary (United Slates v. Brown, 2 Lowell, 267, Fed. Cas. No. 14,665); (3) a plea is tendered of autrefois acquit, concerning -which plea the record is in the same condition as found by me in United States v. Robinson (memorandum filed January 18, 1910); and, finally, (4) the evidential matter as above digested is put into a pleading.

[3] It may first be noted that the plea of autrefois acquit or convict should not be tendered simultaneously with the general issue. It is the rule in criminal law, as it was at common law on the civil side, that defenses both dilatory and peremptory, if they did not go to the merits of the controversy, should be pleaded first, in order that judgment (if against defendant) might be respondeat ouster. This practice arose after the severity which directed final judgment against defendant on overruling a plea in bar (Rex v. Taylor, 3 B. & C. 502) had been modified.

This, however, being a matter of detail only, I have examined the record as if the prosecution had filed a replication to the plea of autre-fois acquit, and find by the record that the previous information failed for what the court considered defects apparent on the face thereof. Therefore it was no information, and the defendant was never in jeopardy.

[4] Notwithstanding .the informality of the fourth plea, what is sought to be raised is, I think, plain enough, viz.; unless this defendant shipped a “drug,” it is not guilty under this information. “Drug” is defined by the sixth section of the act, and the standard of drugs is to be ascertained from the United States Pharmacopoeia by the seventh section thereof. What the Pharmacopoeia says, therefore, the defendant asserts the court may take judicial cognizance of, and, having done this, it is found that neither leaf senna nor gum tragacanth is a drug in the sense in which the Pharmacopoeia uses that word; i. e.:

“Substances used solely for medicinal purposes and when professionally bought, sold, and dispensed as such.”

If such a plea as this (plainly in bar, if it is anything) can be tried, it must be tried either by the court or the jury; and, no matter which course of trial is adopted, it is a sure test of a good plea that the trying power can give judgment or verdict either way. If it be regarded as a plea triable by the court only, judgment against the defendant would be respondeat ouster; but such judgment would be based necessarily upon the insufficiency of the facts alleged, admitting them to be true. This reduces the whole matter to an absurdity, for, if the facts alleged (as I understand them) be true, the defendant is not guilty, and the court has no more power to pronounce a judgment of not guilty than it has to- enter one of guilty.

I think this analysis shows that the alleged plea amounts to no more than a statement of evidence intended to support the plea of not guilty; therefore it is not a plea at all.

It is ordered that the pleas of not guilty and statute of limitations stand, that the plea of autrefois acquit be overruled after an inspection o'f the records of this court, and that the remainder and balance of the document filed and entitled “Plea and Answer” be stricken from the files as unauthorized by law.