Opinion
No. 8173.
April 9, 1940.
Appeal from the District Court of the United States for the Eastern District of Michigan, Southern Division; Ernest A. O'Brien, Judge.
Thomas S. Donnelly, of Detroit, Mich., and Joshua R.H. Potts, Eugene Vincent Clarke, and Basel H. Brune, all of Chicago, Ill., for appellant.
John C. Lehr and John C. Ray, both of Detroit, Mich., for appellee.
Before HICKS, SIMONS, and ARANT, Circuit Judges.
Upon appeal from a judgment rendered against the appellant for misbranding articles in violation of Section 8 of the Pure Food and Drugs Law, 21 U.S.C.A. § 10.
It appearing from the stipulation of facts that the articles sought to be condemned are the identical articles that formed the basis of an indictment against the appellant in the District Court of the United States for the Northern District of Illinois, Eastern Division, in which court the indictment was, upon demurrer, dismissed because showing on its face that the statements, designs or devices alleged to have been borne by the packages were not statements of curative or therapeutic effect within the language of the statute, in consequence of which the indictment was held not to state an offense against the United States, and it being the view of the court that the decision in the District Court of Illinois is res judicata of present issues, the decision there being upon the merits with respect to the charge of misbranding, it is hereby ordered that the judgment below be and it is hereby reversed. United States v. Oppenheimer, 242 U.S. 85, 87, 37 S.Ct. 68, 61 L.Ed. 161, 3 A.L.R. 516; United States v. Barber, 219 U.S. 72, 31 S. Ct. 209, 55 L.Ed. 99; Coffey v. United States, 116 U.S. 436, 445, 6 S.Ct. 437, 29 L.Ed. 684. To the same effect is United States v. 119 Packages, etc., D.C.N.Y., 15 F. Supp. 327. The cause is remanded for new trial in conformity herewith.