223 F. 222 | D.R.I. | 1915
“That whenever any person engaged in carrying on the business of manufacturing oleomargarine defrauds, or attempts to defraud, the United States of the tax on the oleomargarine produced by him, or any part thereof, he shall forfeit the factory and manufacturing apparatus used by him, and all oleomargarine and all raw material for the production of oleomargarine found in the factory and on the factory premises, and shall be fined not less than five hundred dollars nor more than five thousand dollars, and be imprisoned not less than six months nor more than three years.”
The fraud punishable under the section is only that committed by particular persons; by
“Any person engaged in carrying on the business of manufacturing oleomargarine.”
An indictment under this section must definitely charge that a person of such description defrauded, or attempted to defraud, etc.
No matter how active the co-operation of third persons, they are not subject to the penalties imposed by the act unless there is the concurring act of a person engaged in the business of manufacturing oleomargarine, and unless such third persons are charged with aiding and abetting, or otherwise are brought within section 332 of the Criminal Code, which makes one who aids, abets, counsels, commands, induces, or procures the commission of an offense a principal. Coffin v. United States, 162 U. S. 664, 669, 16 Sup. Ct. 943, 40 L. Ed. 1109.
“while engaged as officers, agents, and employSs of the Narragansett Dairy ■Company, a corporation of the state of Rhode Island, in carrying on, for and in the name of said corporation, the business of a manufacturer of oleomargarine, that is to say, throughout said period of time said James S. Orr as president and said Clarence H. Orr as agent and employe of said corporation (each of them being actively engaged in the management and control of the business and affairs thereof), in their several capacities, for and in the name of said corporation, did carry on, at No. 512 South Main street in said city, said business of a manufacturer of oleomargarine,” etc.
This qualifies all allegations in the indictment as to the manufacture of the'oleomargarine.
The indictment does not charge directly that the Narragansett Dairy Company, a corporation, was engaged in carrying on the business of a manufacturer of oleomargarine, nor that the Narragansett Dairy Company defrauded the United States of the tax on the oleomargarine produced by it. The indictment therefore is not aided by section 332 of the Criminal Code.
Neither does it sufficiently charge that the defendants were engaged in carrying on the business of manufacturing oleomargarine.
Section 17 is directed at the principal, and does not, like many other statutes, in terms make agents or employés of a principal or officers of a corporation, liable as principal offenders.
The allegations that the defendants in “their said several capacities” ■did carry on said business is inconsistent with the contention that they themselves were the principals. Neither does the definition of a manufacturer in section 3 of the act as amended by act of May 9; 1902 (32 Stat. 193), assist the indictment.
Even if it could be held unnecessary to charge specifically the facts which make a person a manufacturer of that special class (which is doubtful), it would still be necessary to charge directly, substantially in the language of the statute, that the defendants were engaged in the business of manufacturing.
As the indictment fails to do this, I am of the opinion that it .does not, with requisite directness and certainty, charge the defendants either as principals under section 17, or as principals under section 332 of the ■Criminal Code.
Demurrers sustained.
