Vol. III, p. 98, sec. 1041.

Effect of death of defendant. The purpose of a fine imposed in a criminal case is the punishment of the defendant personally for the offense of which he has been convicted, and while the federal statutes provide for the collection of a fine by execution as in case of civil judgments, there is no provision making it a debt, and where a defendant upon whom a fine has been imposed by a federal court dies before the fine has been paid or

Vol. III, p. 99, sec. 1042.

Homestead exemption. This section construed in connection with the section immediately preceding it evidences an intention on the part of Congress to place the United States on an equality with civil contract creditors in the enforcement of judgments in criminal and penal cases, and to give the families of poor convicts the full benefit of the exemption and homestead laws of the states as against such judgments; and in the absence of any statute expressly providing therefor, an execution on a judgment for a fine in favor of the United States cannot be levied on the defendant's homestead in a particular state, although under the state law such homestead is only exempt from contract debts, and not from judgments for torts or in favor of the commonwealth in criminal cases. Allen v. Clark, (C. C. A. 1903) 126 Fed. 738. Recaption for payment of fine. Where a prisoner in the penitentiary, after having served the imprisonment part of the sentence, was erroneously discharged on habeas corpus because it was supposed that his incarceration could not be continued for nonpayment of the fine assessed, it was held that the United States, on reversal of such order,

Vol. III, p. 100, sec. 1047.

collected, the cause abates, and the fine cannot be collected from his estate. U. S. v. Mitchell, (1908) 163 Fed. 1014, affirmed (C. C. A. 1909) 173 Fed. 254.

The homestead. To the same effect as the original note and citing the cases therein mentioned, see U. S. v. Stacey, (1907) 155 Ind. 510.

For another case under this section, see Ex p. Barclay, (1907) 153 Fed. 669.

could retake and return him to the penitentiary from which he had been released, and hold him therein until he had been lawfully discharged by payment of the fine, or by taking the poor debtor's oath after thirty days additional imprisonment, as authorized by this section. Haddox r. Richardson, (C. Č. A. 1909) 168 Fed. 635.

"Jail." The word "jail," as used in the last sentence of this section does not imply that no prisoner should be held in a penitentiary for nonpayment of a fine or a fine and costs, but was used merely to indicate the place of confinement, and hence a federal prisoner could be properly retained in the same institution where he had served his term of imprisonment for the nonpayment of a fine, or a fine and costs, assessed as a part of the sentence, until the fine was paid, or the pris oner applied to take the poor debtor's oath after the expiration of thirty days from the completion of his term. Haddox r. Richardson, (C. C. A. 1909) 168 Fed. 635.

Maximum term of imprisonment. — To the same effect as the original note, see Ex p. Peeke, (1906) 144 Fed. 1016, affirmed (C. C. A. 1907) 153 Fed. 166.

Under R. S. sec. 3184, 3 Fed. Stat. Annot. 584, providing for the collection of delinquent internal revenue taxes with a penalty of five per cent. thereon and interest at the rate of one per cent. a month, such interest is not a penalty, but is recoverable as interest, and the limitation of five years, prescribed by section 1047 for suits to recover penalties, does

not apply to a suit to recover such interest as a part of the debt. U. S. v. Guest, (C. C. A. 1906) 143 Fed. 456.

Violation of Interstate Commerce Acts. An action to recover damages for discrimination in violation of the Interstate Commerce Act (Act of Feb. 4, 1887, ch. 104, secs. 2, 8, 24 Stat. L. 379, 382, 3 Fed. Stat. Annot. 813, 833), providing that for a violation of the terms of the Act the carrier shall be liable to the persons injured for the full amount of damages sustained, and for a reasonable counsel or attorney's fee to be taxed by the court, is within the five-year limitation of this section. Carter v. New Orleans, etc., R. Co., (C. C. A. 1906) 143 Fed. 99.

Vol. III, p. 106, sec. 5296.

Customs revenue cases. - This section does not apply to customs revenue cases, which are subject to the three-year limitation for similar proceedings "accruing under the customs revenue laws of the United States," which is provided in section 22, Act June 22, 1874, ch. 391, 18 Stat. L. 190, 2 Fed. Stat. Annot. 761. U. S. v. Wittemann, (C. C. A. 1907) 152 Fed. 377.

An action for damages. Chattanooga Foundry, etc., Works r. Atlanta, (1906) 203 U. S. 390, 27 S. Ct. 65, 51 U. S. (L. ed.) 241, affirming (1900) 101 Fed. 900, set out in the original note.

Under this section see also U. S. v. One Dark Bay Horse, (1904) 130 Fed. 240.

Vol. III, p. 119, sec. 2.

Substances not within Act. A food product known as "Fruit of the Meadow," composed of leaf lard and beef fat, bathed in salt ice water to take away the fat and lard odor, but not having any ingredient to give it a butter flavor, or coloring matter to give it a

Vol. III, p. 120, sec. 3.

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Barter. In Ewers v. Weaver, (1910) 182 Fed. 713, it appeared that the plaintiff and his brother were both retail dealers in oleomargarine, and had paid the tax for the first six months of 1910. The plaintiff, having purchased a wholesale shipment of oleomargarine, which had not arrived, borrowed from his brother a package of the same material which the brother had obtained from the same wholesale dealer from whom plaintiff's supply had been ordered. A few days thereafter the plaintiff's shipment arrived, and he returned to his brother the precise amount borrowed of the same product and brand. It was held that such a transaction constituted a barter, and not a sale, and did not subject the plaintiff to the tax imposed on wholesale dealers in oleomargarine.

"Manufacturer." The actual selling, vending, or furnishing of oleomargarine for use and consumption by others is not one of the necessary components of a manufacturer as contemplated by such Act, so as to require proof of actual selling, vending, or furnishing of some of the product to constitute the offense: the term "manufacturer " as so used being construed to mean one engaged in the business of selling, vending, or furnishing oleomargarine for consumption of others. Vermont r. U. S., (1909) 174 Fed. 792, 98 C. C. A. 500.

The words any person," as used in the

butter appearance, although put up and sold in pound packages, is not taxable as oleomargarine, under this Act, which is intended to apply only to products made in conscious imitation of butter. Braun v. Coyne, (1899) 125 Fed. 331.

third sentence of the first paragraph of this section are not limited to licensed wholesale or retail dealers in oleomargarine, but are comprehensive enough to embrace any or all persons, whether licensed dealers or not, selling, vending, or furnishing oleomargarine to which they have added coloring matter to represent butter. Vermont r. U. S., (1909) 174 Fed. 792, 98 C. C. A. 500,

Evidence. In Vermont v. U. S., (C. C. A. 1909) 174 Fed. 792, the evidence was held to be sufficient to warrant a conviction of the defendants as manufacturers of oleomargarine for mixing coloring matter therewith to represent butter without having paid the federal tax and obtained the required license, and for selling, vending, or furnishing oleomargarine for use and consumption of others.

Applicability of internal revenue laws. — The Oleomargarine Acts are complete in themselves, only those provisions of the general internal revenue statutes which are expressly enumerated therein being applicable thereto; and therefore a collector is not authorized to exact the penalty of fifty per cent. provided for by R. S. sec. 3176, 3 Fed. Stat. Annot. 580, from a dealer for neglecting to make the proper return. Craft r. Schafer, (1907) 153 Fed. 175, 82 C. C. A. 349. See also Grier r. Tucker, (1907) 150 Fed. 658, affirmed (1908) 160 Fed. 611, 87 C. C. A. 513.

Vol. III, p. 121, sec. 4.

Manner of prosecution. A violation of this section, while not in terms a misdemeanor, is in the nature of a criminal offense and may be prosecuted by information or indictment. U. S. v. Joyce, (1905) 138 Fed. 455.

Indictment. — Where a person is indicted for the unlawful sale of oleomargarine, in violation of this Act, it is sufficient to charge in the words of the Act that the defendant was carrying on the business of a wholesale or of a retail dealer, as the case may be, without having paid the tax required by law. U. S. v. Joyce, (1905) 138 Fed. 457; Hart v. U. S., (C. Č. A. 1910) 183 Fed. 368.

An indictment need not set out a statement of the facts which constitute the defendant a manufacturer. Hart v. U. S., (C. C. A. 1910) 183 Fed. 368.

An indictment in the words of this Act was held not to be objectionable for indefiniteness nor for failure to negative that defendant was a manufacturer selling his own product in stamped packages at the place of manufacture, within the exception of the statute. U. S. t. Joyce, (1905) 138 Fed. 455.

Vol. III, p. 122, sec. 5.

Liability on bond. R. S. sec. 3232, 3 Fed. Stat. Annot. 605, provides that no person shall be engaged in or carry on any trade or business of a kind thereafter mentioned until he has paid a special tax therefor in the manner provided. Section 3233, 3 Fed. Stat. Annot. 605, provides for registration of per sons engaged in such trades, with the internal revenue collector, and sections 3238 and 3239, 3 Fed. Stat. Annot. 607, provide that such special taxes shall be paid by stamps denoting the tax, which shall be exhibited in the taxpayer's place of business. It has been held that a bond given by a manufacturer of oleomar.

Vol. III, p. 122, sec. 6.

Penalty. The penalty prescribed in this section does not apply to that part of the section prohibiting retailers from selling in quantities exceeding ten pounds, such offense being subject to punishment by a fine of $1,000 without imprisonment, as prescribed by section 18. Ripper v. U. S., (C. C. A. 1910) 178 Fed. 24.

Constitutionality. — The provision of this section that retail dealers must sell in quantities not exceeding ten pounds at any one time violates no constitutional right. Ripper v. U. S., (C. C. A. 1910) 178 Fed. 24.

The words every person," as used in the last sentence of this section, should be construed to refer solely to manufacturers and dealers mentioned in the first part of the section, so that an indictment for violating such section, failing to charge that accused was either a manufacturer or dealer in oleomargarine, and as such packed produce in a

Since the tax on oleomargarine is leviable when the substance is manufactured and sold or removed for consumption and use an indictment alleging a manufacture and sale of oleomargarine without payment of the tax, and with intent to defraud the United States of the same and that it should not be paid, in the language of the statute, was not invalid, in the absence of an application for a bill of particulars, for failure to allege the specific means by which defendant attempted or intended to attempt to defraud the United States. Enders v. U. S., (C. C. A. 1911) 187 Fed. 754.

This section creates two classes of manufacturers, one manufacturing oleomargarine itself for sale, and the other those selling oleomargarine for consumption after adding artificial coloration; and hence an indictment against an alleged member of the second class for selling oleomargarine on which the tax was not paid was not defective for failure to contain the averment, applicable only to original manufacture, that the oleomargarine on which the tax was not paid was intended for sale. Enders v. U. S., (C. C. A. 1911) 187 Fed. 754.

garine as authorized by section 5, to secure a compliance with the laws and regulations in regard to the manufacture, removal, and sale of oleomargarine, and providing that the manufacturer shall comply with all the requirements of the law, and regulations "in regard to the manufacture, removal, and sale of oleomargarine," and shall not engage in any attempt to defraud the government of any tax on their manufactures, and shall render a true and correct return, etc., does not secure the manufacturer's liability for the payment of the special tax mentioned above. U. S. v. Elgin Churning Co., (1910) 183 Fed. 878.

manner violative of the Act, would siate no offense. Morris v. U. S., (1909) 168 Fed. 682, 94 C C. A. 168.

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Knowledge. In Goll v. U. S., (C. C. A. 1908) 166 Fed. 419, it was held that where G. was not shown to have ordered, advised, approved, or had knowledge of a sale of oleomargarine by another not under G.'s control, without being properly printed or branded, G. could not be convicted of the alleged wrongful sale of such substance.

Indictment. An indictment founded on this section, charging a retail dealer with having violated said section and the regulations prescribed thereunder by failing to pack oleomargarine sold by him as therein required, must describe the package used with reasonable certainty so as to advise the defendant of the particular offense charged, and therefore a general averment that "the said oleomargarine was not then and there packed

Vol. III, p. 123, sec. 8.

The congressional power to levy excises was not exceeded by the enactment of this Act imposing an excise on artificially colored oleomargarine, because that body did not choose to tax natural butter artificially colored. McCray r. U. S., (1904) 195 U. S. 44, 24 S. Ct. 769, 49 U. S. (L. ed.) 91.

Due process of law. The excise on artificially colored oleomargarine does not infringe the constitutional guaranty of due process of law because the effect of the tax may be to suppress the manufacture of that article. McCray v. U. S., (1904) 195 U. S. 44, 24 S. Ct. 769, 49 U. S. (L. ed.) 91.

Due process of law is not denied by this section because Congress has not chosen to tax natural butter artificially colored. McCray v. U. S., (1904) 195 U. S. 44, 24 S. Ct. 769, 49 U. S. (L. ed.) 91.

The motives or purposes of Congress in enacting the tax imposed by this Act on artificially colored oleomargarine are not open to judicial inquiry in considering the power of that body to enact such legislation. McCray v. U. S., (1904) 195 U. S. 44, 24 S. Ct. 769, 49 U. S. (L. ed.) 91.

"Free from artificial coloration." — Oleo. margarine containing a small quantity of a vegetable oil, which substantially serves only to give the product the yellow shade which causes it to resemble butter, cannot be regarded as within the proviso in this section imposing a lesser tax on oleomargarine when "free from artificial coloration that causes it to look like butter of any shade of yellow," on the theory that the use of a substance which Congress has, in section 2, recognized as a possible ingredient, cannot be artificial coloration, since this congressional enumeration of ingredients specifically includes color

Vol. III, p. 124, sec. 11.

Waiver of jury trial. Persons prosecuted by information in a federal District Court under this section may waive the jury to which they are entitled by U. S. Const.. Amend. VI., since the mandate of article 3, section 2, clause 3, that "the trial of all

the sales were at wholesale or at retail, and in what respect the packages were not in the form prescribed, and what stamps, marks, or brands required by law they did not have thereon, was held to be insufficient. U. S. v. Joyce, (1905) 138 Fed. 457.

But an indictment for unlawfully selling oleomargarine, averring that both of the defendants named therein "unlawfully and knowingly did sell and deliver" at a time and place and to a person named a onepound package of oleomargarine wrapped in a paper wrapper, without being then and there marked and branded in the manner required by section 6, was held to be sufficient. Goll v. U. S., (C. C. A. 1908) 166 Fed. 419.

ing matter. Cliff v. U. S., (1904) 195 U. S. 160, 25 S. Ct. 1, 49 U. S. (L. ed.) 139.

Of similar effect, see Moxley v. Hertz, (1910) 216 U. S. 344, 30 S. Ct. 305, 54 U. S. (L. ed.) 510; Moxley v. Hertz, (C. C. A. 1911) 185 Fed. 757.

Artificially colored oleomargarine, whose color is imparted in its manufacture by the use of an artificially colored and authorized ingredient, is not within this section imposing, instead of the general tax on oleomargarine prescribed by that section, a lower rate when "free from artificial coloration," because of the provision of section 3 that persons adding to, or mixing with, oleomargarine any artificial coloration shall be held to be manufacturers of oleomargarine. MeCray r. U. S., (1904) 195 U. S. 44, 24 S. Ct. 769, 49 U. S. (L. ed.) 91.

Oleomargarine whose yellow color is produced by the employment, as an ingredient, of butter which itself is artificially colored, is not "free from artificial coloration," within the meaning of the proviso in this section prescribing a lower rate of taxation for oleomargarine not so colored, although the statute treats butter, whether artificially colored or not, as an authorized ingredient of oleomargarine. McCray r. U. S., (1904) 195 U. S. 44, 24 S. Ct. 769, 49 U. S. (L. ed.) 91.

Findings of fact. A finding that the use of palm oil as an ingredient of oleomargarine was substantially only for coloring purposes was not disturbed on appeal, where it was based on testimony that out of a total of 160 ounces only 11⁄2 ounces were palm oil, and that this quantity imparted the yellow shade which caused the product to resemble butter. Cliff v. U. S., (1904) 195 U. S. 160, 25 S. Ct. 1, 49 U. S. (L. ed.) 139.

crimes, except in cases of impeachment, shall be by jury," does not include such petty offenses, and there is no congressional legislation or rule of public policy requiring a jury in such cases. Schick r, U. S., (1904) 195 U. S. 47, 24 S. Ct. 826, 49 U, S. (L, ed.) 101,

Vol. III, p. 125, sec. 13.

Elements of offense. In order to constitute the offense of neglect or refusal to destroy the stamp from an emptied oleomargarine package, it need only appear that the package had a stamp on it denoting the payment of a tax; that it was emptied of its contents; that it was in defendant's possession in its emptied condition; and that he wilfully neglected or refused to destroy the stamp while the empty package was in his possession; and hence an indictment for such offense is not defective for failure to charge that the package was emptied while in the defendant's possession. Ripper v. U. S., (C. C. A. 1910) 178 Fed. 24. Of similar effect, see Vermont v. U. S., (1909) 174 Fed. 792, 98 C. C. A. 500.

Vol. III, p. 125, sec. 15.

Indictment. Sections 6 and 10 of this Act provide different stamps, marks, and brands for oleomargarine according as it is of domestic or foreign manufacture, and if the former, if it is to be sold at wholesale or retail. Section 7 requires every domestic manufacturer to paste securely on each package a printed label giving the number of the factory and the district and state, etc.; a warning against the removal of the contents of the package without destroying the stamp, which is made an offense; and section 15

Vol. III, p. 126, sec. 17.

Indictment. An indictment which, after averring facts showing defendant to have been a manufacturer of oleomargarine within the statute, charges in the language of the statute that he attempted to defraud the United States of the tax on oleomargarine produced by him, is sufficient, without setting out the particular acts relied on to prove such attempt. Hardesty v. U. S., (1909) 168 Fed. 25, 93 C. C. A. 417.

Where an indictment for an attempt to defraud the United States of a tax on oleomargarine, in violation of this section, contained a general charge in the language of the statute, it was held not to be objectionable for failure to affirmatively allege that the tax was assessable, as the defendant was notified by such general charge that the government intended to prove either that the oleomargarine had been sold, or that it had been removed for sale and consumption, without payment of the tax. Enders v. U, S., (C, C, A. 1911) 187 Fed. 754,

sioner of Internal Revenue permits retail dealers to take the oleomargarine from the original stamped package in advance of sales and put it up in retail packages, marked and branded as prescribed by law and regulation, and offer the same for sale, provided such prepared retail packages remain till sold in or on the manufacturer's original package; a retail dealer, however, to be subject to a fine if he remove his prepared packages from the original package and sell them separated from and independently of the manufacturer's stamped package. It has been held that a manufac turer's stamped package is not "emptied," within section 13, making it a duty, subject to a fine for violation thereof, of the person in whose hands the package is when emptied, to destroy the stamps thereof, where it still contains a pound package put up by the retailer of its original contents. U. S. c. Knott, (1907) 151 Fed. 925.

makes it an offense to deface or remove any of the stamps, marks, or brands required by law from such packages. It has been held that an indictment alleging that defendants wilfully, etc., defaced the stamps, marks, and brands upon two certain packages con. taining oleomargarine, which packages were in their possession for sale, but which failed to show that the stamps removed were such as were prescribed by the statute, was insufficient. U. S. v. Joyce, (1905) 138 Fed. 457.

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Information. An information for the forfeiture of an oleomargarine plant, under this section, is sufficient, which charges in the language of the statute that the claimant was engaged in the business of manufacturing oleomargarine, and defrauded and attempted to defraud the United States of the tax on the oleomargarine produced by it, or a part thereof. U. S. v. New Jersey Melting, etc., Co., Manufacturing Apparatus, etc., (1905) 141 Fed. 475.

Evidence. - An indictment charging the defendants with an attempt to defraud the United States of the tax on oleomargarine manufactured by them is sustained by evidence that they were dealers in oleomargarine, that they bought uncolored oleomargarine, colored the same to resemble butter, and repacked it in empty packages before used and stamped as containing the colored product, and that they had previously sys tematically done the same thing, and sold the article so colored without paying the