Joseph v. United States

WILBUR, Circuit Judge. Appellant Joseph was charged by information with a violation of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 321(f). The information contains two counts, one charging a shipment of contaminated food on January 25, 1943, and the second charging a similar shipment on December 30, 1942. The case was tried before a jury and judgment of conviction on the verdict was rendered on both counts. Appellant was sentenced to a fine of $250 on the first count and, on the second count imposition of sentence was suspended for a year during which period he was placed on probation. The appellant entered into a stipulation of facts with the government in which, among other things, it was stipulated that the shipments alleged in the information were food. On the eve of the trial the appellant changed attorneys and on the day of the trial, November 10, 1943, without previous notice to the government appellant made a motic/n that he be relieved from the stipulation on the ground that the product shipped was not to be used as food without further processing. The motion was denied and no exception taken. The denial of this motion is assigned as error. The same question was raised on a motion for new trial. A further ground for the motion for new trial was that a government witness had been seen conversing with a juror. In the absence of exceptions taken in the trial court no point is raised for decision on appeal. Decision on motion for new trial is not reviewable in any event. The appellant argues that there was no evidence on the second count except the stipulation and therefore it cannot be considered as sufficient evidence of the crime without — 75 — further proof of the corpus delicti. The proper way to raise this question in the lower court would be by motion for a directed verdict. None was made and consequently the question is not before us. Moreover, the stipulation covered all the facts necessary to show the commission of an offense and was sufficient without additional evidence. Affirmed.