THE SOLICITOR. 769 



on the question whether the law had been violated. The indict- 

 ment was held to be defective and the motion in arrest of judgment 

 granted, the court holding that a compliance with section 4 of the 

 act is a prerequisite to prosecution in all cases brought before United 

 States attorneys for prosecution by the Department of Agriculture 

 (181 Fed., 587). From this decision an appeal was directed by the 

 Attorney General to the Supremo Court, where the case is now 

 pending. 



Three interesting questions were decided by the district court for 

 the eastern district of Penns3dvania in United States v. 5 Boxes of 

 Asafoetida (181 Fed., 561). Libel was filed against a consignment 

 of asafoetida in the possession of the Smith, Kline & French Co. 

 Adulteration was alleged because the drug differed from the strength, 

 quality, and purity, as determined by the test laid down in the 

 Pharmacopoeia. Evidence produced at the trial showed that before 

 the service of the attaclmaent the claimants opened the packages, 

 took samples therefrom for examination, and marked the containers 

 so as to show the actual strength, quality, and purity of the asafoetida. 

 Claimants urged the dismissal of the libel, alleging no forfeiture could 

 be had because the facts in the case would not support a criminal 

 prosecution against them, that the sampling of the packages destroyed 

 their character as ** original packages," and that the labeling of the 

 packages before seizure relieved them from liability to forfeiture 

 under the terms of section 10 of the act. It was held that section 10 

 defines fully when and under what circumstances foods and dru^s 

 shall be forfeited, and is separate and distinct from section 2, and it 

 is unimportant in forfeiture proceedings, whether any person on the 

 same state of facts could be convicted under section 2. The taking 

 of samples for the purpose of examination was decided not to destroy 

 the commercial form of the packages and not to incorporate the 

 goods with the property of the State so as to remove them from the 

 juiisdiction of the act over original packages. Liability to seizure, 

 however, was held to depend on the question whether articles are 

 adulterated or misbranded at the time of seizure, and as the con- 

 tainers were properly marked and the dru^ therefore was not adul- 

 terated at the time of seizure, the court directed the release of the 

 asafoetida to the claunants (181 Fed., 561). 



The practice of proceeding by information in criminal prosecutions 

 under section 2 of the act was approved in United States v. J. Lindsay 

 Wells Co. (186 Fed., 248). The mformation filed against this defend- 

 ant cliarged the shipment of certain adulterated cotton-seed meal, 

 and defendant moved to quash the information on the ground that 

 the prosecution was in violation of the fifth amendment to the Con- 

 stitution, which provides that no person shall be held to answer for a 

 cai)ital or infamous crime unless upon presentment or indictment of 

 a grand juiy. Violation of section 2 of the food and drugs act was 

 held not to be an infamous crime, because the maximum period of 

 imprisonment wliich may be imposed thereunder does not exceed 

 one year, and proceedings under the section, therefore, not to bo in 

 conflict with the fifth amendment and may be by information in lieu 

 of indictment (182 Fed., 248). To the same clfect is United States 

 V. Baumert et al. (179 Fed., 735), where it is decided that prosecu- 

 tions under section 2 of the food and drugs act may be instituted 

 by information supported by the allidavits of parties making oath 



2310.5"— .\GR 1911 19 



