138 F. 457 | M.D. Penn. | 1905
There is nothing in the exception that the indictment is not sustained by the complaint made before the commissioner, on which the defendants were arrested and bound over, everything that is charged in the one appearing also in the other, and the cases which hold that, to the extent that they vary, the indictment cannot be sustained, do not therefore apply. Neither is there any valid objection to the first and second counts, in-which, in the words of the act, the defendants are charged, in the one with carrying on the business of a wholesale, and in the other of a retail, dealer in oleomargarine, without in either instance having paid the tax required by law. With regard to the other two counts, however, the case is different. Of these the third is based on the sixth section of the oleomargarine act, a copy of which is set forth in the margin.
This section, as it will be observed, provides for different forms of packages and somewhat different regulations, according as sales are to be made, on the one hand by manufacturers and wholesale-dealers, and on the other by those who sell at retail. In the one case the oleomargarine is required to be packed in firkins, tubs, or other wooden packages not before used for that purpose, containing not less than 10 pounds, marked, stamped, and branded as the Commissioner of Internal Revenue with the approval of the Secretary of the Treasury shall prescribe, sales by manufacturers and wholesale dealers being required to be made in such original stamped packages;
Neither is the fourth count materially better. It is based on the fifteenth section of the act (24 Stat. 212 [U. S. Comp. St. 1901, p. 2233]), and charges that the defendants “did knowingly, willfully and unlawfully remove and deface the stamps, marks and brands upon two certain packages containing oleomargarine subject to United States tax, which said packages were in their possession for purpose of sale.” The same complaint is made of this that although it follows the words of the act it is not sufficiently specific. The difficulty is that different stamps, marks, and brands are provided for, according as the oleomargarine is of domestic manufacture (section
The rule is made absolute as to the third and fourth counts of the indictment, which are hereby quashed.
Act Aug. 2, 1886, c. 840, 24 Stat. 210 [U. S. Comp. St. 1901, p. 2230]: “See. 6. That all oleomargarine shall be packed by the manufacturer thereof in firkins, tubs, or other wooden packages not before used for that purpose, each containing not less than ten pounds, and marked, stamped, and branded as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall prescribe; and all sales made by manufacturers of oleomargarine, and wholesale dealers in oleomargarine shall be in original stamped packages. Retail dealers in oleomargarine must sell only from original stamped packages, in quantities not exceeding ten pounds, and shall pack the oleomargarine sold by them in suitable wooden or paper packages, which shall be marked and branded as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall prescribe. Every person who knowingly sells or offers for sale, or delivers or offers to deliver, any oleomargarine in any other form than in new wooden or paper packages-as above described, or who packs in any package any oleomargarine in any manner contrary to law, or who falsely brands any package or affixes a stamp on any package denoting a less amount of tax than that required by law, shall be fined for each offense not more than one thousand dollars, and be imprisoned not more than two years.”