party to this action. Lucas v. United States, 163 U. S. 612, 41 L. ed. 282, 16 Sup. Ct. Rep. 1168.

The last assignment of error is based upon certain language used in the argument to the jury by the assistant United States attorney. The evidence disclosed that the homicide was committed about 6 o'clock in the morning, in the rear room of the second floor of the house where the deceased was lodging. A witness for the prosecution, who was sleeping in the front room on the same floor, was aroused by the sound of someone falling. She went along the hall to the room of the deceased, and while outside of the door heard the accused say, "I told you I would get you." The witness returned to her room, and was followed by the accused, who demanded admission. Witness threatened to call an officer, when the accused said, "You will open this door now, or you will open it later. I know that I will be arrested." In the course of the argument, counsel for the government used the following language, to which exception was taken: "She says that when she extricated herself from him that she went right from the house; but what did she do? Forthwith she went to the room of Miss Burroughs, the woman who had heard her words, the woman who knew she was there, and demanded with a curse, admission, and when refused, when the police call was threatened, the answer came back, 'Oh, the police will get me; the police will get me, but if you don't open that door, you will later;' and thanks to that lock Miss Burroughs is here now, but if it had not been for it, she perhaps would have shared the fate of the husband." While the rule requiring officers of the government in the prosecution of criminal cases, to refrain from prejudicial remarks to the jury not warranted by the evidence, is a very strict one, we are not convinced that the above remark comes within the rule. A prosecuting officer is at liberty to form his own theory of a case, and to pursue it in the course and manner of the trial, so long as the theory is consistent with the evidence. Here the evidence was circumstantial. It was the theory of the prosecution, and the one undoubtedly adopted by the jury, that the accused went to the house where the crime was committed in a state of mind fixed upon murder. She had

Syllabus.

[37 App. been discovered by the witness in the hall, and when she pursued the witness to her room and demanded admittance, it is a reasonable inference, or an admissible one at least, that had she gained admission she would have done violence to the only witness who had discovered her at the scene of the murder.

It will be observed that many of the assignments are trivial, and would not have been discussed in this opinion except for the serious consequences to the accused of an affirmance of the judgment.

The judgment is affirmed.

Affirmed.

DISTRICT OF COLUMBIA v. THOMPSON.

CRIMINAL LAW; FOOD ADULTERATION; MUNICIPAL CORPORATIONS.

An information in the police court of the District of Columbia, under the act of Congress of February 17, 1898 (30 Stat. at L. 246, chap. 25), against a milk dealer, is properly quashed by that court, where it charges the accused with furnishing to a customer "milk which was not of the best quality of milk (to wit, milk of an inferior quality, in that the said milk was stale or dirty, or both stale and dirty, and which contained fecal matter); there being more than one quality of said article of food known by the same name, without the said purchaser having requested an inferior article of milk, and without notifying the said purchaser at the time of such purchase that the said milk was of inferior quality,"-as the information does not directly charge that there are more than one quality of standard and unadulterated milk, and that an inferior quality was delivered without request therefor or notification that it was of such an inferior quality; nor does it show that the milk sold was an adulterated article within the definitions of that act.

No. 2285. Submitted October 3, 1911. Decided November 6, 1911.

IN ERROR to the Police Court of the District of Columbia. Affirmed.

The facts are stated in the opinion.

Mr. E. H. Thomas, Corporation Counsel, and Mr. F. H. Stephens, Assistant, for the appellant.

Mr. H. E. Davis for the appellee.

Mr. Chief Justice SHEPARD delivered the opinion of the Court:

This is a writ of error to review the judgment of the police court quashing an information.

The information charged that Corbin Thompson, under a contract to furnish milk to the Homeopathic Hospital in the city of Washington, furnished thereto "milk which was not of the best quality of milk (to wit, milk of an inferior quality, in that the said milk was stale or dirty, or both stale and dirty, and which contained fecal matter), there being more than one quality of said article of food known by the same name, without the said purchaser having requested an inferior article of milk, and without notifying the said purchaser at the time of such purchase that the said milk was of inferior quality," in violation of sec. 2 of the act of Congress relating to the adulteration of foods and drugs in the District of Columbia, approved February 17, 1898 [30 Stat. at L. 246, chap. 25]. Section 2 of this act, after declaring the inclusion of the words "drug" and "food," proceeds as follows: "And if there be more than one quality of any article of food or drug known by the same name, the best quality thereof shall be furnished to the purchaser, unless he otherwise requests at the time of making such purchase, or unless he be notified at such time of the inferior quality of the article delivered." This section, the violation of which, as well as of other provisions, is made punishable by sec. 9, goes somewhat beyond the particular object of the act, which is the prevention of the sale of adulterated articles of food and drugs, and is intended to cover those cases where there may be different qualities or grades of food in the market, none of which shall fall below the standard prescribed by the act, or be adulterated within its meaning. In such cases the purchaser shall be supplied with the best quality, unless he otherwise requests,

Opinion of the Court.

[37 App or is notified at the time of the delivery that the article is of the inferior quality. That this was the purpose of sec. 2 is confirmed by the proviso in the succeeding section (3), which section declares what shall constitute adulteration within the meaning of the act. The information does not directly charge that there was more than one quality of standard and unadulterated milk, and that an inferior quality thereof was delivered without request therefor or notification that it was of such inferior quality. The charge is that the milk was of an inferior quality because it was stale or dirty, or both stale and dirty, and contained fecal matter. This does not show the delivery of an inferior article of standard and unadulterated milk within the prohibition of sec. 2, but of an adulterated article within the terms of sec. 3. Subdivision 5 of that section declares an article to be adulterated "if it consists wholly or in part of a diseased, decomposed, putrid, or rotten animal or vegetable substance, whether manufactured or not." And subdivision 7 declares it to be adulterated "if it contains any added poisonous ingredient, or any ingredient which may render it injurious to the health of a person consuming it." If, therefore, dirt or fecal matter contained in milk as a matter of fact consists in whole or in part of a diseased, decomposed, putrid, or rotten animal or vegetable substance, the milk is an adulterated article of food, within the meaning of paragraph 5 aforesaid, and its sale is an offense. If, on the other hand, the dirty or fecal matter contained does not consist of such diseased or rotten substances, but contains a poisonous ingredient, or any ingredient which may render it injurious to the health of the consumer, the sale of such milk is prohibited by subdivision 7.

The information failing to charge a violation of sec. 2, and not containing allegations sufficient to constitute a violation of sec. 3, the police court did not err in sustaining the motion to quash.

The judgment is therefore affirmed.

Affirmed.

D. C.]

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UNITED STATES v. CELLA.

CRIMINAL LAW; APPEAL AND ERROR; APPEAL BY UNITED STATES; BUCKET SHOPS; CRIMINAL CONSPIRACY; STATUTES.

1. Under sec. 935, D. C. Code [31 Stat. at L. 1341, chap. 854], an appeal lies to this court by the United States, from a judgment of the supreme court of the District of Columbia, sustaining demurrers to an indictment for violation of the act of Congress of March 1, 1909 (35 Stat. at L. 670, chap. 233; D. C. Code, secs. 869a, b, c, and d), prohibiting bucketing and bucket shopping, and to abolish bucket shops; and quashing the indictment and allowing the accused to go without day. (Following United States v. Cadarr, 24 App. D. C. 143; and distinguishing United States v. Evans, 30 App. D. C. 58, s. c. 213 U. S. 297, 53 L. ed. 803, 29 Sup. Ct. Rep. 507.)

2. It is an offense against the United States to violate the provisions of the act of Congress of March 1, 1909 (35 Stat. at L. 670, chap. 233), prohibiting bucketing and bucket shopping and abolishing bucket shops in the District of Columbia, and requiring prosecutions thereunder to be in the name of the District of Columbia; and therefore a conspiracy to commit such an offense is indictable in the name of the United States under sec. 5440, Rev. Stat. U. S. Comp. Stat. 1901, p. 3676, relating to the crime of conspiracy against the United States. (Citing Tyner v. United States, 23 App. D. C. 324; and Geist v. United States, 26 App. D. C. 594.)

3. In a charge of conspiracy, the conspiracy is the gist of the crime, and certainty, to a common intent sufficient to identify the offense which the accused conspired to commit, is all that is requisite in stating in the indictment the object of the conspiracy.

4. An indictment for conspiracy is sufficient where it clearly states the object of the conspiracy, the time when and place where it was entered into, and the manner in which it was to be carried out, although the particular part to be assumed or undertaken by each conspirator in the consummation of the unlawful scheme is not set forth. (Citing Hyde v. United States, 35 App. D. C. 451.)

5. If the ordinary individual, after reading a penal statute, knows exactly what he may or may not do, its meaning cannot be said to be ambiguous, and if such a statute be within the scope of the legislative authority, it is the duty of the courts to sustain and enforce it.