8413. Alleged adulteration of milk. U. S. v. H. O. Hopkins. Tried to tke?
court and a jury. Verdict of not guilty. (P. & D. No. 4076. I. S. No.?
2389-d.)
On July 15, 1912, the United States attorney for the District of Connecticut,?
acting upon a report by the Secretary of Agriculture, filed in the District Court?
of the United States for said district an information against H. O. Hopkins,?
Plainfield, Conn., alleging the shipment by said defendant in violation of the?
Food and Drugs Act, on September 6, 1911, from the State of Connecticut into?
the State of Rhode Island, of a quantity of milk which was alleged to have been?
adulterated.
Bacteriological examination of a sample of the product by the Bureau of?
Chemistry of this department showed the following results: 200,000 organisms?
per cc on plain agar after 2 days' incubation at 37? C.; 20,000,000 organisms?
per cc on lactose litmus agar after 2 days' incubation at 25? C, of which?
16,000,000 were acid types; 1,000,000 gas-producing organisms and 1,000,000?
streptococci present per cc.
Adulteration of the product was alleged in the information for the reason?
that it consisted in part of a filthy, decomposed, and [or] putrid animal or?
vegetable substance.
On July 23, 1912, the defendant entered his plea of not guilty to the informa??
tion. On March 10, 1914, the cause having come on for trial before the court?
and a jury, after the submision of evidence and argument by counsel, the fol??
lowing charge was delivered to the jury by the court (Thomas J.) :
Gentlemen of the jury, in June, 1906, Congress passed a law commonly known?
as the Food and Drugs Act, by which it was sought to better protect the con??
suming public against the scheming manufacturers of food and drugs. Among?
many other things it is provided in that law that- it shall be unlawful for any?
person to manufacture any article of food that is adulterated within the mean??
ing of the act. The act further provides, so far as this inquiry is concerned,?
that an article of food shall be deemed to be adulterated "if it consists in whole?
or in part of a filthy, decomposed, or putrid animal or vegetable substance."?
It further provides, as pertinent to this inquiry, " that the introduction into?
any State from any other State of any article of food which is adulterated within?
the meaning of this act is hereby prohibited, and any person who shall ship?
or who shall deliver for shipment from any State to any other State any such?
article which is adulterated withinv the meaning of this act shall be guilty of a?
misdemeanor. You will see that the act defines what is an adulterated article?
of food.
Now, this is a criminal prosecution. In every criminal case the law presumes?
that the accused is innocent until his guilt is established, and in this case it?
must be established by the Government beyond a reasonable doubt. The pre??
sumption of innocence in favor of an accused person follows him throughout?
the trial until sufficient evidence has been adduced by the Government to induce?
in your minds the belief that he is guilty beyond a reasonable doubt. At the?
beginning of every judicial inquiry the law says that he who asserts the affirma??
tive of any proposition of fact assumes the burden of proof; that is, he must?
prove what he says. Where claims are made upon one side and denied upon?
the other, as here, the parties are at issue upon the truth of those claims, and?
the law in this case places the burden of proving those claims upon the Gov??
ernment. The burden of proof in this case is not discharged until the Govern??
ment has proved all the material allegations of the indictment beyond a reason??
able doubt, and if it fails to prove all of the material allegations beyond a rea??
sonable doubt, then it has failed to sustain the burden which the law imposes?
upon it, and the accused is entitled to an acquittal.
What is a reasonable doubt? Not all phrases are aptly or accurately defined?
by the use of the words themselves, but in this case it may be fairly stated that?
a reasonable doubt may be defined by the use of the words themselves. It is?
such a doubt as a reasonable man would entertain in determining or deciding?
the important and graver affairs of life. It is not a mere guess, whim, con??
jecture, or possibility; it is a reasonable doubt arising in your minds after a?
careful consideration of all the evidence in the case so that you are unable to
642	
BUREAU  OF  CHEMISTRY.    •	
[August, 1914.
say that you are reasonably certain that the Government has proven all of the?
material allegations of the indictment, and in this connection I charge you that?
if the Government fails to sustain the burden of proof or that you entertain a?
reasonable doubt as to any one of the material allegations of the indictment,?
then even the accused is entitled to the benefit of the doubt arising in your mind?
and should be acquitted, the same as he should be convicted in case you find?
that the Government has sustained the burden of proof and has satisfied you,?
beyond a reasonable doubt, of the truth of all of the material allegations of the?
indictment.
In weighing the evidence and determining the credibility of the witnesses and?
each of them you should look to the manner and demeanor of each witness in?
testifying; to the readiness and willingness or tardiness or unwillingness, if any,?
in answering upon the one side or the other; to whether the witnesses, or any?
of them, have any bias or interest or not; to the witness's means of knowledge?
and opportunity for knowing the facts he has testified to and professes to know?
and understand; to the reasonableness or unreasonableness and the probability?
or improbability of the circumstances related by the witnesses when considered?
in connection with all the facts and circumstances in evidence before you. And?
having thus carefully considered all these matters the jury must fix the weight?
and the value of the testimony of each and every witness and the evidence as a?
whole, and are not compelled to accept as true any statement made by any wit??
ness unless you find such statement to be true after considering the same in con??
nection with all of the facts and circumstances in evidence before yon, recon??
ciling, as far as possible, any conflicting evidence.
It is true that the jury is a tribunal which is regarded by the law as one?
especially fitted to decide controverted questions of fact upon the evidence. The?
jury decides how much credibility is to be given to each witness, what weight?
justly belongs to the evidence, and between the statements of hostile and con??
tradictory witnesses, where the truth lies. A juror must use all his experience,?
his knowledge of human nature, his knowledge of human events, past and pres??
ent, his knowledge of the motives which influence and control human action, and?
test the evidence in this case according to such knowledge, and render his verdict?
accordingly. The juror who does not do this is remiss in his duty. It is prop??
erly within your province, in listening to the testimony of the witnesses, to ob??
serve their demeanor on the witness stand, their manner and bearing, intelli??
gence and character, and means of knowledge, and to take into consideration,?
as I have said, any interest or bias any witness may have or entertain, and to?
reconcile, as far as possible, any conflicting evidence.
Before I address myself to the question particularly involved in this case I?
ought to and do remind and charge you that you and you alone are the sole?
judges of the questions of fact which arise here, and you are to determine these?
questions upon a careful consideration of all of the evidence before you without?
direction or suggestion from the court as to what weight or value you should?
give to all or any part of the testimony; nor are you in any way to be governed?
in your conclusions by any opinion the coiirt might seem to express or to give?
you.
A juror's first concern, where the parties are in flat conflict as to the essen??
tial facts, where the evidence is contradictory, is naturally to determine what?
the real facts are. You are to be guided in your performance of that duty by?
the court only in following the law which the court gives you. So that, while?
you are in every essential sense the sole judges of the facts, you are answerable?
to the court for the application of the law to the facts as you find them, and?
you must receive from the court and apply to the case such instructions upon?
the law applicable to the case arising here as shall guide your deliberations?
toward a verdict in harmony with the law's requirements. In considering this?
case and in drawing your conclusions you will necessarily be guided to some?
extent by the testimony of expert witnesses. I therefore deem it necessary to?
instruct you with reference to the evidence of such witnesses. An expert wit??
ness is one who is skilled in any particular art, trade, or profession, being?
possessed of peculiar knowledge concerning the same, acquired by study, obser??
vation, and practice. The jury is not bound by expert testimony necessarily?
but such testimony should be considered by you in connection with the other?
evidence in the case. Their testimony is subject to your consideration and your?
supervision and your judgment. Such testimony is to be taken and treated by?
you like the testimony of other witnesses. Their opinions are subject to the?
same rules of credit or discredit as the testimony of the other witnesses and?
are not necessarily conclusive upon the jury.   Whether the matters testified to
Supplement.]   SERVICE AND REGULATORY ANNOUNCEMENTS.	643
by them are facts, whether they are true or false, is to be determined by the?
jury alone, and you will carefully consider and examine their testimony in?
connection with all the other testimony in this case, as I say, subject to the?
same rules of credit and disbelief as the testimony of other witnesses.
The material allegations of the information are as follows, all of which you?
must find to have been proven beyond a reasonable doubt before you can find?
the defendant guilty:
First. That H. O. Hopkins, the defendant, did unlawfully ship certain milk on?
September 6, 1911, and that it was the subject of an interstate shipment; that?
is, from one State to another, for it is only in an interstate shipment that the?
Federal courts have jurisdiction; or that he delivered for shipment said milk.
Second. That said milk was the subject of an interstate shipment?that is,?
from one State to another?in this case from Connecticut into Rhode Island.
Third. That said milk was an article of food.
Fourth. That said milk was adulterated.
Fifth. That the adulteration consisted in part of a 'filthy, decomposed, or?
putrid animal or vegetable substance.
Sixth. That no other person or agency save the defendant himself, or his?
authorized agents, caused this milk to be adulterated.
Under the first essential there has been much testimony with reference to?
the initials " H. O. H.," " H. H. O.," and " H. H.'i If you entertain a reasonable?
doubt from all the evidence about the sample taken by Mr. Meserve, the Govern??
ment's inspector, and analyzed by Dr. Stiles, the Government's bacteriologist;?
if you entertain a doubt about this milk being the defendant's milk, your?
inquiry is ended, and the defendant is entitled to the benefit of the doubt and?
should be acquitted. If you believe that it was the defendant's milk that was?
analyzed, you will pursue your inquiry and ascertain whether it was adul??
terated at the time the defendant left it oh the depot platform at Plainfield.?
If you find that it was adulterated after he left it at the depot platform at?
Plainfield, either through the direct act of some one else adulterating it, the?
defendant should be acquitted, or if you find that it was adulterated through?
an indirect agency, through any foreign substance getting into the cans, or?
that it was old or impure milk through no fault of the defendant, because?
it was not properly iced or because it had been allowed to stand on the day?
in question, when the temperature was, as testified by Mr. Tarr, 70? at 6 a. m.?
and 84? at noon, you could not then find the defendant guilty. You must?
take into consideration the conditions under which this milk was produced. In?
view of the fact that the evidence was given some days ago, I will recall to?
your minds some of it. You will remember the testimony of the defendant,?
giving you in detail the conditions unden which he produced his milk; where?
he kept his cans and how he milked and when he milked and what he did with?
it after he drew the milk and the manner in which he eventually got it to the?
depot. If you find, as I say, that this milk was produced under those condi??
tions, and being produced under such conditions as to satisfy you that it was?
not adulterated, as I have heretofore explained to you, and if you believe that?
at the time it was left by him at the depot platform at Plainfield that it?
was not adulterated within the meaning of this act, why, then, of course you?
could not find the defendant guilty. On the other hand, if you do believe, as it?
has been testified, that at the time it was left at the depot platform at Plain-?
field that it was adulterated within the meaning of this act and that this?
adulteration consisted of a filthy, decomposed animal or vegetable substance,?
why, of course, then the defendant would be guilty. In assisting you in?
arriving at your conclusion with reference to the adulteration you have the?
testimony of the experts. In behalf of the Government the testimony shows?
that these samples were taken at the depot in Providence, after the train had?
arrived in Providence. Defendant claims that ample time had intervened from?
the time he left it at the depot platform in Plainfield until the samples were?
taken by the experts for foreign substances, in a number of ways, to have?
gotten into those cans, either through the water from the ice filtering through?
the wooden stoppers, around the edges, or through some person willfully open??
ing a can and putting in foreign substance of this nature. Of course if you?
find those facts to be true the defendant would not be guilty; and, on the?
other hand, if you find from all the testimony that such was not the case,?
but that it was adulterated as it was left there by Mr. Hopkins at the depot?
platform in Plainfield, why, then, of course he would be guilty. Take in that?
connection the testimony of the experts; you will recall the testimony of Dr.?
Stiles for the Government, after he took this sample, taking it in one vial
644	
BUREAU  OF  CHEMISTRY.	
[August, 1914.
he dumped it into another one, and he had some cotton in one end of the vial,?
and that his fingers were on the stopper somewhere, and that he put it in a?
suit case with some ice, and took it to Boston to his laboratory and analyzed it,?
the final analysis not occurring until he reached Boston. You are to take all?
of these matters into consideration, as to whether or not this milk was adulter??
ated at the time Mr. Hopkins left it at the depot platform in Plainfield. And?
you will recall Dr. Stiles's testimony was to the effect that there were 20,000,000?
bacilli, I believe, in the samples; it is for you to determine and for you to find?
out whether it is true that that was the condition which existed at Plainfield?
as the cans were delivered by Mr. Hopkins at the depot platform. Prof.?
Bsten, of the Connecticut Agricultural Station, testified, giving his opinion.?
You will bear in mind that this sample was taken the 6th of September?
and this defendant knew nothing about it until the 2d day of January follow??
ing; in consequence of this it was impossible for him or his experts to?
analyze that particular sample and find out whether his experts would agree?
with the Government's experts; therefore their expert's opinion is adduced from?
facts testified to by Dr. Stiles. Prof. Bsten testified?if I am not right it is?
for you to correct me?that, in his opinion, it is quite likely when that milk?
left Mr. Hopkins's farm or the Plainfield depot it had from 25,000 to 50,000?
bacilli in it, and on account of the warmth of the day, if it was not thoroughly?
iced, that these germs multiplied rapidly and might naturally produce the?
results as testified to by Dr. Stiles in the interim between the time this milk?
was left at the depot platform in Plainfield until Dr. Stiles examined it at his?
laboratory in Boston.
We have had some testimony before us with reference to what is good milk,?
excellent milk, fair milk, etc. In Connecticut I ought to tell you that we have a?
statute which provides as follows: "Milk containing more than 1,000,000 bac??
teria per cubic centimeter shall be considered impure milk." By that it is rea??
sonable to infer that the only inference that can be drawn is that if it does not?
exceed 1,000,000 it is not impure, but the minute it goes over the million, then it?
becomes impure milk. So you can use that as a standard as to whether this?
milk, at the time Mr. Hopkins delivered it on the depot platform at Plainfield,?
whether it then contained in excess of 1,000,000 bacteria so as to determine the?
question whether it was old and impure milk. Of course, Mr. Hopkins, the de??
fendant, could not be charged with what happened after he delivered it in Plain-?
field. The inquiry and what you are to find from all this evidence is, What was?
the condition of this milk when he left it there at the depot?
The COUET. Mr. James, on your second list of requests do you want those?
claims stated?
Mr. JAMES. If your honor please.
The COURT. I have been requested to charge by the defendant as follows, and?
with slight modifications will charge as requested. Much of this is repetition,?
gentlemen, but in view of the court being requested to charge, I feel in duty?
bound to and do charge with slight modifications.
The constitutional right of liberty is so sacred that every person coming into?
court charged with a crime, whether it be a felony or a misdemeanor, is pre??
sumed to be innocent until the evidence overcomes that presumption of innocence?
to a degree arising to the mental condition of the jury whereby there shall be no?
reasonable doubt. By reasonable doubt we mean just what those words indi??
cate; a doubt arising beyond reason that develops from the evidence?that?
grows out of the evidence; not beyond a conjecture of a doubt, but a reasonable?
doubt. This respondent, Mr. Hopkins, is charged here with the violation of the?
pure-food act, so called. Now, a little analysis of the law may aid you some??
what, probably materially, in disposing of this question. The law, as applied to?
this case, is, to use the language of the law, " that it shall be unlawful for any?
person to manufacture within the territory of the United States any article of?
food or drug which is adulterated or misbranded." You observe the language??
adulterated or misbranded; unlawfully to manufacture any article of food that?
is adulterated or misbranded. It is also unlawful for any person to ship or?
deliver for shipment from one State or Territory to another any such manufac??
tured, adulterated, or misbranded article of food. Now, that is the law, and in?
order to convict, you must find, beyond a reasonable doubt, that this milk was?
adulterated within the meaning of the act, as I have defined it. No claim that?
he manufactured. No claim but what this was milk that came from his dairy?
of cows. The claim is that the milk was adulterated, and then, in the language?
of the law, " delivered for shipment into another State." Now, to sustain that?
you must find, beyond a reasonable doubt, both of those things; first, that the
Supplement.]   SEEVICE AJSrb REGULATORY AISTN'OUFCEMEK'TS.	645
milk was adulterated, and, second, that he delivered it for shipment at Plainfield?
into another State, and those two questions you must find beyond a reasonable?
doubt
Now, you will naturally ask right off when you retire, what does " adulterate "?
mean; does it mean the accidental dropping of something into the milk or that?
something accidentally got into the milk and thereby changed its quality? Is?
that what is meant by adulteration? Well, now, the law itself says, " If it con??
sists in whole or in part of a filthy, decomposed, or putrid animal or vegetable?
substance, or any portion of an animal unfit for food, whether manufactured or?
not, or if it is the product of a diseased animal, or one that has died otherwise?
than by slaughter," it covers the meaning of " adulterated." Now, you want to?
think of that pretty carefully?filthy, decomposed, or putrid matter; putrid?
animal or vegetable substance. The law limits it right down to filthy, decom??
posed, or putrid animal or vegetable substance.
Take the general scope of this Pure Food and Drugs Act which, in my judg??
ment, is one of the most wholesome acts ever passed by Congress, and it is the?
duty of the courts to see that it is enforced, was primarily driving at manu??
factured articles of drugs and food. Now, the question is whether we have?
a case here that comes up to that point, and we must keep within the law,?
and you will have to find from this evidence, beyond a reasonable doubt, that?
not only that milk was impure, but that the impurity consisted of a filthy or?
a decomposed or of a putrid animal or vegetable substance, in order to bring?
this man within the law. The law addressed itself to your common sense as?
to whether those things that were found in this milk show a state of facts that?
satisfy you, beyond a reasonable doubt, that those things were some one of?
these that I have enumerated and that this milk in question was adulterated,?
either through a purpose on the part of this defendant or through carelessness-?
no claim of its being done on purpose, nobody claims that, for it is conceded here?
that he is a good, upright man; now, that may be by carelessness and a?
criminal carelessness, that is for you to say; but if you do not find that this?
milk was adulterated with some of these things that I have enumerated, that?
is the end of your inquiry and your verdict should be " Not guilty." If you do?
find that the impurities in that milk come within the definition that I have just?
read to you, then you should inquire as to whether or not the evidence satisfies?
you, beyond a reasonable doubt, that it was the defendant's carelessness that?
got  that impurity  into  the milk,   and you  will  find  that in  the  evidence.
There are just two branches of evidence?one is as to just what the chemists?
found there and the other as to the care the defendant took?and if in con??
sidering those two questions you have a reasonable doubt, then you are to?
find in behalf of the defendant; if not, then it is your duty to convict. So?
the case rests right there. ?
And I want to say right here that no matter what the court may have said?
about the facts in this case as indicating to your mind what I think you ought?
to do, that is of no consequence; whether I think this man was guilty or not.?
You are not to guess as to what I think; you are to pass upon that, and when I?
allude to the testimony it is merely to illustrate the law and the question of?
the law; you take care of the facts.
The COUBT. Any exceptions?
Mr. SCOTT. I except to that portion of the charge where you state that the?
law was primarily aimed at manufactured articles of food.
The COTJET. I think it would be fair to say in connection with that that the?
law was primarily aimed at manufactured articles of food and drugs, and?
adulterated articles of food and drugs. I am charging you that it is also?
aimed at adulterated articles of food and drugs.
Mr. SCOTT. I except to that portion that it was primarily aimed at manu??
factured articles of food and drugs and the adulteration of food and drugs.
The COURT. Exception noted on the part of the Government.
Gentlemen, you may retire, and when you have agreed upon a verdict let me?
know.
The jury thereupon retired, and after due deliberation returned into court?
with a verdict of not guilty.
D. F. HOUSTON, Secretary of Agriculture.
WASHINGTON, D. C, September 25, 1914.
74103??15?2
646
BUREAU  OP  OHEMISTEY.
r August, 1914.