(dissenting). In Ledbetter v. United States, 170 U. S. 606, 18 Sup. Ct. 774, 42 L. Ed. 1162, the Supreme Court held that an indictment which charged in the words of the statute that the defendant did unlawfully carry on the business of a re*684tail liquor dealer without having paid the special tax therefor was sufficient when there was only one way under the statutes in which he cóuld he a retail liquor dealer, and that way was declared by the statute- to be by selling or offering for sale foreign or domestic dis7 tilled spirits or malt liquors otherwise than as therein provided in less quantities than five gallons at the same time. But the court also said at page 610 of 170 U. S. and page 775 of 18 Sup. Ct. (42 LK. Ed. 1162):
“We have no disposition to qualify what has already been frequently decided by this court, that where the crime is statutory it must be charged with precision and certainty, and every ingredient of which it is composed must be clearly and accurately set forth, and that even in the cases of misdemeanors the indictment must be free from all ambiguity, and leave no doubt in the minds of the accused and the court of the exact offense intended to be charged. United States v. Cook, 17 Wall. 168, 174, 21 L. Ed. 538; United States v. Cruikshank, 92 U. S. 542, 562, 23 L. Ed. 588; United States v. Carll, 105 U. S. 611, 26 L. Ed. 1135: United States v. Simmons, 96 U. S. 360, 24 L. Ed. 819; United States v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516; Pettibone v. United States, 148 U. S. 197, 13 Sup. Ct. 542. 37 L. Ed. 419; Evans v. United States, 153 U. S. 584, 14 Sup. Ct. 934, 38 L. Ed. 830.”
If, as in the Eedbetter Case, the statute had prescribed a single way by which a defendant could constitute himself a manufacturer of oleomargarine a charge of carrying on the business of a manufacturer of oleomargarine would undoubtedly have been sufficient to- sustain a conviction upon the proof that the defendant pursued that way, but the statutes applicable to the case at bar provided, “manufacturers of oleomargarine shall pay $600. Every person who manufactures oleomargarine for sale shall be deemed a manufacturer of oleomargarine.” Section 3. “That every person who carries on the business of a manufacturer of oleomargarine without having paid the special tax therefor as required by law shall, besides being liable to the payment of the tax, be fined not less than one thousand and not more than five thousand dollars.” Section 4. Act of 1886, c. 840, 24 Stat. 209 (U. S. Comp. St. 1901, p. 2229). “And any person that sells, vends or furnishes oleomargarine for the use or consumption of others, except to his own family table, without compensation, who shall add to or mix with such oleomargarine any artificial coloration that causes it to look like butter of any shade of yellow, shall also be held to be a manufacturer of oleomargarine within the meaning of said act and subject to the provisions thereof.” Act of May 9, 1902, § 2, 32 Stat. 193 (U. S. Comp. St. Supp. 1907, p. 636).
6), Here were two distinct offenses punishable by like penalties, (1) carrying on- the business of manufacturing oleomargarine out of the raw materials of which it is composed without paying the special tax, and (2) carrying on the business, without paying the special tax, of coloring and selling oleomargarine which had theretofore been manufactured out of the’ raw materials by others. The charge in each of the first six counts of the indictment was that the defendant did unlawfully “carry on the business of a manufacturer of oleomargarine.” There was no proof that he ever .manufactured oleomargarine, but there.was-'some.evidence- that he colored oleomargarine which others Had previously manufactured, and sold it. At the close of the trial *685counsel for the defendant requested the court to instruct the jury to return a verdict in his favor on each of these counts, upon the ground that there was no evidence to sustain them. The court denied this request as to all except the fourth count and charged the jury that if they found that the defendant colored and sold oleomargarine without paying the special tax they might find him guilty. To these rulings the defendant excepted.
The following declarations of the law upon this subject are extracted from the opinions of the Supreme Court in the cases which are cited and reaffirmed in the Ledbetter Case. “No essential element of the crime can be omitted without destroying the whole pleading. The omission cannot be supplied by intendment or implication, and the charge must be made directly and not inferentially, or by way of recital. * * * The doctrine invoked by the solicitor general that it is sufficient in an indictment upon a statute to set forth the offense in the words of the statute does not meet the difficulty here. Undoubtedly the language o'f the statute may be used in the general description of an offense, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense coming under the general description with which he is charged.” United States v. Hess, 124 U. S. 483, 487, 8 Sup. Ct. 571, 573, 31 L. Ed. 516. “It is an elementary principle of criminal pleading that, where the definition of an offense, whether it be at common law or by statute, ‘includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition, but it must state the species — it must descend to particulars.’ 1 Arch. Cr. Pr. and P1. 291. The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment with reasonable particularity of time, place, and circumstances.” United States v. Cruikshank, 92 U. S. 542, 558, 23 L. Ed. 588. “A rule of criminal pleading, which at' one time obtained in some of the circuits, and perhaps received a qualified sanction from this court in United States v. Mills, 7 Pet. 138, 8 L. Ed. 636, that an indictment for a statutory misdemeanor is sufficient if the offense be charged in the. words of the statute, must, under more recent decisions, be limited to cases where the words of the statute themselves, as was said by this court in United States v. Carll, 105 U. S. 611, 612, 26 L. Ed. 1135, ‘fully, directly and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.’ The crime must be charged with precision and certainty, and every ingredient of which it is composed must be accurately' and clearly alleged. United States v. Cook, 17 Wall. 168, 174, 21 L. Ed. 538; United States v. Cruikshank, 92 U. S. 542, 558, 23 L. Ed. 588. ‘The fact that the statute in question, read in the light of the common law, *686and of other, statutes on the like matter, enables the court to, infer the intent of the Legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that intent.’ United States v. Carll, 105 U. S. 611, 26 L. Ed. 1135.” Evans v. United States, 153 U. S. 584, 587, 14 Sup. Ct. 934, 38 L. Ed. 830.
The offenses of which the defendant was found guilty under counts 1, 2, 3, 5, and 6 of the indictment were that he colored and sold oleomargarine which had been manufactured by others. The averment of the indictment that the defendant did “carry on the business of a manufacturer of oleomargarine” was a sufficient charge that he manufactured oleomargarine out of the raw materials, that he made oleomargarine out of substances which were not oleomargarine before he manufactured it out of them, for this is the common, ordinary, and rational meaning of the words of the allegation. But did the averment that the defendant did “carry on the business of a manufacturer of oleomargarine” charge him with the offense of which he was convicted, the offense of purchasing oleomargarine which had been manufactured by others, qí coloring it and of selling it without paying the special tax? The elements of the latter pífense were coloring and selling oleomargarine which had been made by others, the elements of the offense charged in the indictment were transforming the raw materials into oleomargarine — manufacturing oleomargarine. If the indictment had used the words of the statute of 1902, which described apd first made the coloring and vending of oleomargarine without paying the special tax an offense, it would probably have been sufficient, but it used the words of the statute of 1886, which in no way set forth or intimated the charge of any other offense than manufacturing oleomargarine. In my opinion these counts of this indictment do not fall under the rule in Rinker v. United States, 151 Fed. 755, 759, 81 C. C. A. 379, 383, that “when.an indictment sets forth the facts constituting the essential elements of the offense with such certainty that it cannot be pronounced ill upon motion to quash or demurrer, and yet is couched in such language that the accused is liable to be surprised by the production of evidence for which he is unprepared, he ■shpuld, in,advance of the trial, apply for a bill of particulars; otherwise 'it may 'property be assumed as against him that he is fully informed of the precise case which he must meet, upon-.the trial”; because the indictment does not set forth any of the facts constituting the essential elements of the offense of which this defendant was convicted, and because these counts of the indictment are not ambiguous, because they clearly set forth another offense of which there was no proof, they .charge the offense of manufacturing oleomargarine, and they neither aver nor intimate the offense of coloring and. vending-oleomargarine manufactured by others, or any of the essential elements of that offense. Neither the indictment nor the words of the statute used therein “fully, directly and expressly, without any uncertainty or ambiguity, set forth all t-he elements necessary to constitute the offense- intended to be punished.” . Evans v. United States, 153 U. S. 587, 14 Sup. Ct. 936, 38 L. Ed. 830; nor was it “accompanied with such a statement of the facts and circumstances as will inform *687the accused of the specific offense corning under the general description with which he is charged.” United States v. Hess, 124 U. S. 483, 487, 8 Sup. Ct. 571, 573, 31 L. Ed. 516. The Supreme Court in the Ledbetter Case said:
“Where the crime is a statutory one it must be charged with precision and certainty, and every ingredient of which it is composed must be clearly and accurately set forth."
The ingredients of the offense of which the defendant was convicted were coloring oleomargarine and selling it without paying the special tax. None of these ingredients were either set forth, of averred, or suggested by the indictment.
As I read and understand the first six counts of this indictment in the light of the opinions of the Supreme Court to which reference has been made, the defendant was clearly charged thereby with manufacturing oleomargarine out of the raw materials without paying the special tax and there was no proof of that offense. He was convicted of coloring and selling oleomargarine, and there was no charge of that offense. Proof without averment is as futile as averment without proof, and the court below, in my opinion, should have instructed the jury to return a verdict for the defendant on counts 1, 2, 3, 5,,and 6 of the indictment, and the judgments below upon them should be reversed, and a new trial should be granted.