Before MAJOR, Chief Judge, and DUFFY and FINNEGAN, Circuit Judges.
Defendants-appellants seek to reverse a conviction, based upon the verdict of a jury finding them guilty of a violation of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. §§ 301-392.
The information charging the offense was filed on January 20, 1947. It contained only one count. It charged that the defendants, on or about June 25, 1945, did unlawfully cause to be introduced and delivered for introduction into interstate commerce, for delivery to one Dr. R. C. Kistler, at Wyandotte, Michigan, one carton containing a number of tubes known as "Vrilium Catalytic Barium Chloride," a device within the meaning of 21 U.S.C.A. § 321(h), that said device when so caused to be introduced and delivered in interstate commerce was, then and there, misbranded within the meaning of 21 U.S.C.A. § 352(a).
On April 12, 1948, the defendants-appellants were arraigned and pleaded not guilty. At that time they were represented by counsel, and the case was set for trial on October 6, 1948. After several continuances the case was set down for April 4, 1949. On March 25, 1949, the first attorney they had employed withdrew. On April 4, 1949, Justus Chancellor and his son Justus, Jr., were substituted as counsel for defendants-appellants.
The defendants consented to the substitution. Mr. Chancellor, Sr. appeared on the motion to substitute. He then requested a continuance for sixty days, but this was denied and this case was re-set for April 11, 1949.
On April 8, 1949, the elder Mr. Chancellor again appeared on behalf of the defendants and moved for additional time to prepare for trial. The court then set the matter for trial on April 18, 1949. Thereafter the case was continued from time to time. Some continuations were on motion of the Government, and others were made to suit the convenience of the court. The younger Mr. Chancellor never appeared in the trial court on behalf of the defendants-appellants, although motions to quash the complaint and dismiss the information were filed and argued by his father.
Finally, and nearly a year later, on March 20, 1950, the case was called for trial. At that time Mr. Chancellor, Sr. requested a continuance because his son, who, he then said, was to try the case, had suffered a heart attack on the previous day and would be unable to proceed for two weeks. The father then claimed that because of his age he had not assumed the burden of a trial for several years. He also said that his hearing was not "extra good."
The court denied the continuance and the trial began. The Government took five whole days to present its case. The defense consumed seven days in the presentation of its evidence. An additional day was expended in arguments and instructions to the jury, and to its deliberation to reach a verdict.
On April 5, 1950, the jury returned its verdict finding the defendants guilty.
On April 26, 1950, the defendants, accompanied by Mr. Chancellor, Sr., again appeared before the trial court. A motion for a new trial was filed and denied, and sentence was pronounced.
The individual defendants, George C. Erickson and Robert T. Nelson, Jr., were sentenced to the custody of the Attorney General for one year and fined $1,000 each; the corporate defendant, Vrilium Products Company, was fined $1,000. On the same day Mr. Chancellor, Sr. filed notice of appeal on behalf of defendants-appellants.
At a later date, May 10, 1950, the attorneys who now appear in this court were substituted as ...