12221. Adulteration of canned salmon. V. S. v. 800 Cases, et al., of 
Salmon. Tried to the court and a jux-y. Verdict for the Govern- 
ment. Decrees of condemnation and -forfeiture. Product re- 
leased under bond to be used as Ash food. (F. & D. Nos. 16925, 16996. 
I. S. Nos. 7878-v, 7880-v, 788'3-v. 7884-v.    S. Nos. W-1238, W-1244.)
On November 21 and 23, 1922, respectively, the United States attorney for the 
District of Oregon, acting upon a report by the Secretary of Agriculture, filed 
in the District Court of the United States for said district libels-praying the 
seizure and condemnation of 1,600 cases of salmon, remaining in the original 
unbroken packages at Astoria, Oreg., alleging that the article had been shipped 
by Jeldness Bros. & Co. from Point Ellis, Wash., in two consignments, namely, 
on or about September 16 and 20, 1922, respectively, and transported from the 
State of Washington into the State of Oregon, and charging adulteration in 
violation of the food and drugs act.
Adulteration of the article was alleged in the libels for the reason that it 
consisted in whole or in part of a filthy, decomposed, and putrid animal sub- 
stance, and in that filthy, decomposed, and putrid salmon had been substituted 
for normal salmon of good commercial quality.
On February 11, 1924, the two libels having been consolidated into one cause 
of action, the case came on for trial before the court and a jury. After the sub- 
mission of evidence and arguments by counsel the court delivered the following 
charge to the jury (Bean, D. J.) :
" GENTLEMEN OP THE JURY : These are actions-there are two of them- 
brought by the Government to condemn certain lots of canned salmon on the 
ground that it is adulterated within the meaning of the pure food and drugs 
act. It is charged in each of the libels that this salmon was adulterated be- 
cause it consisted in whole or in part of filthy, decomposed, and putrid animal 
substances. The respondent or owner of the property has filed an answer 
denying the allegations of the bill. It has been stipulated by counsel, however, 
that the salmon in question was in fact shipped in interstate commerce and 
that the samples taken by agents and representatives of the Government, or 
used by the representatives of the Government in their tests, were taken from 
this lot of salmon, so that the question for you to determine in this case and 
the contested question is whether or not this salmon was adulterated within 
the meaning of this statute.
" As I said to you a moment ago, the statute provides that for the purpose 
of this act an article shall be deemed adulterated, in the case of food, if it 
consists in whole or in part of filthy, decomposed, or putrid animal substances. 
Now, the word ' filthy' in that connection simply means dirty, nasty, unwhole- 
some ; ' decay' means decomposed, rotten, spoiled; and ' putrid' means being 
in a state of putrefaction, tainted, or in such a state of decomposition that the 
odor therefrom is offensive to the smell. And if you believe from the pre- 
ponderance of the evidence in this case that the salmon in question was either 
filthy, decayed, or putrid, it will be your duty to find in favor of the Gov- 
ernment. If, on the other hand, you do not so believe, then it will be your duty 
to find in favor of the claimant in this case.
" Now this is a civil action and a proceeding under the pure food and drugs 
act. That law is a wholesome law. It is a law that is designed and intended 
by Congress to protect the public by prohibiting the shipment in interstate 
commerce of unwholesome or deleterious food, and it should be enforced by 
courts and juries with that object in view.
" Now the statute does not define what shall be considered filthy, decayed, or 
putrid within the meaning of the statute, so that each case must depend upon 
its own facts, and if it appears that this salmon-if you believe that this 
salmon was of such a character on account of its condition that it was not up 
to the standard required or ordinarily required in the commercial world- 
then it would be adulterated within the meaning of the statute.
" It is not necessary, however, for the Government to show that the eating 
of the salmon would be injurious to the health of the individual. That is not 
the question in the case, but the question is whether unwholesome to such an 
extent that it would not satisfy the ordinary requirements of the commercial 
world. If it is, then it ought to be condemned; if it is not, then your findings 
should be in favor of the defendant.
" The word ' decomposed' as used throughout this trial does not, of course, 
mean 'beginning to decompose' because decomposition sets in whenever life 
is extinct, and therefore there must be some state after a fish is taken out of 
the water and before it is put in the can when it can not be said that it is de- 
composed or putrid or filthy or decayed, but if a canner keeps a fish out of 
the water before canning for such a length of time that it becomes putrid or 
decayed or filthy, then puts it in cans for the purpose of sale, he is violating: 
the statute under which this proceeding is had.
" Now the question in this case is a question of fact: Do you believe from 
the evidence that this salmon in question is either filthy, decayed, or putrid- 
If you do, then, as I said, you, of course, must find for the Government; if 
you do not, then you must find for the defendant. Now, that is a question for 
you to determine from the testimony in this case. You1 are the exclusive 
judges of it, and you are the exclusive judges of the credibility of the witnesses. 
Every witness is presumed to speak the truth. This, however, may be over- 
come by the manner in which a witness testifies, by his appearance upon the 
witness stand, and by contradictory testimony, and in weighing the testimony 
of any witness you should keep in mind the interest he may have in the result 
of this trial, if any such interest has been manifest or shown in this case.
" Now there have been a good many witnesses testify here as experts, that is, 
men who have shown from their testimony that they are skilled in the particu- 
lar business in which they are engaged and about which they testified here. 
You are to consider their testimony for whatever you may think it worth. 
They are entitled to testify. The only way a court or jury oftentimes caa 
arrive at the facts in a case is through the testimony of men skilled in the 
particular case, and for that reason these gentlemen have testified to their 
experiments, to their experience and study and other things in that respect, and 
you should weigh all their testimony and from that determine where you think 
the truth lies.
" Now the burden of proof is on the Government in this case to satisfy you 
by a preponderance of the evidence that the charge made in the libel is true, 
and by a preponderance of the evidence I simply mean it must make out the 
best case upon the evidence. I do not mean that it must prove the charge 
beyond a reasonable doubt but simply that if the evidence is evenly balanced- 
you believe the evidence is evenly balanced-then it has not satisfied the law 
by requiring it to prove its case by a preponderance of the evidence.
" Now there has been something said in this case about other salmon having 
been condemned, other salmon packed on the Columbia River having been 
condemned in suit filed by the Government. If that is true it, of course, 
has no bearing upon the merits of this particular case, that is, it would not be 
evidence either that this salmon was subject to condemnation or was not. It 
only became important and was developed during the trial as affecting the 
credibility and reliability of some of the witnesses who testified on the trial.
" Now I don't know of any other questions of law involved in the case. It is 
a question of fact for you to determine. Do you believe from the testimony, 
from a preponderance of the evidence, that this Salmon was filthy, decayed, or 
putrid? If so, find for the Government. If you do not, find for the defendant. 
I understand there are two cases consolidated for trial."
The jury then retired and after due deliberation returned on February 12, 
1924, a verdict for the Government. On April 9, 1924, decrees of condemnation 
and forfeiture were entered, and it was ordered by the court that the product 
be delivered to the claimant, Jeldness Bros. & Co., upon payment of the costs 
of the proceedings and the execution of bonds in the aggregate sum of $2,000, 
in conformity with section 10 of the act, conditioned in part that it be sold as 
food for salmon fry to the Fish Commission of the State of Oregon.
HOWARD M. GOEE, Acting Secretary of Agriculture.