Joseph

(concurring in the result, but dissenting from decision that in a criminal appeal, in the absence of a motion for a directed verdict, no question can be before the appellate court.

I dissent from the refusal on technical grounds to consider the cogently presented contention of appellant that the stipulation of the otherwise unproved fact, namely, that the shipment was a food, a fact necessary for conviction on both, counts, was in the nature of a confession or admission and required further proof of the corpus delicti. The contention is an important one, seemingly of novel import.

The statement that “Moreover, the stipulation covered all the facts necessary to show the commission of an offense and was sufficient without additional evidence,” in no way warrants the refusal to consider appellant’s contention, for, if it be correct, the stipulation is nonetheless a confession requiring corroboration because it contains all the elements of the crime.

Where, as here, a motion is made and denied though no exception is taken, the majority opinion’s statement that “In the absence of exceptions taken in the trial court no point is raised for decision on appeal” is a return to the…

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…