In Error to the District Court of the United States for the Northern District of California.

Ernest Schraubstadter and Emile A. Groezinger were convicted of violating the Pure Food and Drugs Act, and they bring error.

Plaintiffs in error were indicted under tlie Pure Food and Drugs Act, convicted, and lined each $300, from which judgment this writ of error is prosecuted. The indictment contains three counts. In each of the counts the defendants are described as “Ernest Schraubstadter and Emile A. Groezinger, doing business in the city and county of San Francisco, under the firm name and style of A. Finke’s Widow, hereinafter called the defendants.” By the first count it is charged that on the 28th day of December, 1009, they did willfully, unlawfully, and knowingly ship and cause to be shipped from the city and county of San Francisco, state and Northern district of California, to D. Ilolzman, at Spokane, in the state of Washington, “five cases of half bottles of so-called champagne, each bottle of which so-called champagne in each of tlie cases aforesaid was misbranded in the following particulars, to wit: The label on the neck of each of tlie bottles aforesaid contained the words ‘Extra Dry Champagne’ (with a design of a crown), and the main .label on each of the bottles aforesaid contained the words: ‘Champagne Brand Deflour Fils & Cle. Grand Yin Royal. Guaranteed under the Pure Food and Drugs Act, June 30th. 1906, Serial No. 7016’ (with a design of a fancy coat of arms).” It is then charged that the said labels were designed to mislead tlie purchaser into the belief that tlie product was a champagne manufactured in a foreign country, when in truth and in fact it is not a champagne at all, hut a white wine artificially carbonated, and said labels do not give any information as to the real place of production or manufacture, and the real fact is that tlie product in said bottles is a domestic wine artificially carbonated.

Tlie second count charges a shipment of a like number of cases of “so-called champagne" on the same day from San Francisco to Spokane, eacli bottle of which was misbranded in tile following particulars, to wit: “The label on tlie neck of each of the bottles aforesaid contained the words ‘Extra Dry’ (with a design of a crown), and the main label on each of the bottles aforesaid contained the words ‘Crown Brand Champagne’ (with the design of a crown and crossed scepters), and underneath the words: ‘Guaranteed under the National Pure Food .and Drugs Act, June 30th, 1906.’” And it is further charged that the product in said bottles contained was not in fact champagne, but a domestic wine artificially carbonated, and the said product was and is calculated to deceive the purchaser thereof.

The third count pertains to a sale and delivery to McDonald & Cohn, importers and wholesale liquor dealers of San Francisco, of two cases of half bottles of so-called champagne, misbranded in the following particulars, to wit: “The label on the neck of eacli of the bottles aforesaid containing the words ‘Extra Dry Champagne’ (with a design of a shield and the monogram A. F. AY.), and the main label on each of the bottles aforesaid contained the words: ‘(’uvée Special E. L. Mercior & Cie. Brand. Extra Dry. Guaranteed under the Pure Food and Drugs Act, June 30th, 1906. Serial No. 7016’ - which the said McD'onald & Cohn caused to be shipped from San Francisco to Iienson, Ariz. It is then charged with like effect as in the first count, and, further, that defendants gave to the purchaser a written guaranty that the goods so purchased complied with the provisions of the Pure Food and Drugs Act, and that in so selling said wine defendants did so with the knowledge that the same might be entered into the commerce of the country as a champagne.

Trial was entered upon before a jury, but before the same was completed the jury was discharged under an agreement that the trial should be had before the court, waiving a jury'. On conclusion of Hie testimony, and after hearing the argument of counsel, it was “by the court ordered that a judgment ol' guilty be, and the same is hereby, entered as charged in the indictment herein.” Thereafter judgment was rendered as follows: “It is therefore ordered and adjudged that each of said defendants pay a fine of one hundred (100) dollars, on each count of the indictment herein, consisting of three counts, to wit, the sum of three hundred (300) dollars each.” Previous to the entry thereof a motion was filed in arrest of judgment, based upon the insufficiency of the indictment