13251. Adulteration and alleged.. misbranding; of batter. V. S. v. South 
Hero Creamery Assoc. Tried' to tbe court and a Jury. - Verdict 
of guilty on adulteration charge and of not guilty on misbrand- 
ing: charge.    Fine, $25.     (P. & D. No. 19269.    I. S. No. 16844-v.)
At the February, 1925, term of the United States District Court, within and 
for the District of Vermont, the United States attorney for said district, 
acting upon a report by the Secretary of Agriculture, filed in the district court 
aforesaid an information against the South Hero Creamery Assoc, a corpora- 
tion, South Hero, Vt., alleging shipment by said company, in violation of the 
food and drugs act as amended, on or about June 23, 1924, from the State of 
Vermont into the State of Massachusetts, of a quantity of a product invoiced 
as butter, which was alleged to have been adulterated and misbranded.
Analyses of samples of the article by the Bureau of Chemistry of this de- 
partment showed that the average butterfat content of five samples was 78.3d 
per cent.
Adulteration of the article was alleged in the information for the reason 
that a product deficient in butterfat had been substituted for butter, which the 
said article purported to be, and for the further reason that a product which - 
consisted of less than 80 per cent by. weight of milk fat had been substituted 
for butter, a product which should contain not less than 80 per cent by weight 
of milk fat, as prescribed by the act of March 4, 1923, which the said article 
purported to be.
Misbranding was alleged for the reason that the article was food in package 
form and the quantity of the contents was not plainly and conspicuously 
marked on the outside of the package.
On March 13, 1925, the case came on for trial before the court and a jury. 
After the submission of evidence and arguments of counsel, the court delivered 
the following instructions to the jury (Howe, D. J.) :
" GENTLEMEN OF THE JURY : There are just two questions of fact in this- 
case for you to decide; one question of fact on each charge. There are two- 
charges that the Government makes against the South Hero Creamery. First, 
they say that they shipped in interstate commerce some butter that didn't 
contain 80 per cent of butterfat, that that shipment was made on the 23rrl 
day of June; and second, they say that they shipped this butter in interstate 
commerce without marking on the tubs the weight. It is an offense against 
the laws of the United States to ship in interstate commerce any butter that 
contains less than 80 per cent of milk fat, or butterfat; those terms we have
been told mean the same thing, and it is equally an offense to ship food, and, 
among other things, butter, without marking the weight on the tubs, if it 
goes in tubs. Whatever the packages are [they] must have the weight marked 
on them. Those are the two questions of fact. You can find the creamery 
guilty of both of these offenses, you can find it not guilty of either offense, or you 
can find it guilty of one and not guilty of the other.
" Now, this is a criminal case, and the same rules that I have given you 
here repeatedly apply to this case just as much as to any other criminal case. 
The creamery is presumed to be innocent, and that presumption is to be 
weighed in its favor as evidence in the case. If there are two theories in 
the case, each equally reasonable, it is your duty to adopt the theory leading 
to innocence, rather than the one leading to guilt. I think you have all been 
on several trials in which we have gone over this. Is there anyone on this 
panel who hasn't heard these rules? The reason is, gentlemen, that different 
lawyers come in, and they don't know how often you have heard these rules. 
It would be an error on the part of the court to submit a case to the jury 
without giving these rules. No unfavorable inference can be drawn against 
the creamery because it has been complained of and charged with this crime. 
Remember that. The reasonable doubt doctrine, you will remember that. 
The defendant can not testify, because it is a corporation. It is an invisible 
person, so I won't need to say anything about the defendant's testimony. 
The butter maker has testified, and the inspector and the chemist and the 
professor. Now, the young man that makes the butter over there testified. 
You have heard some questions asked him about what he told down in Boston 
to the Chief of the Agricultural Department. You-weigh the testimony of all 
these witnesses and give them just such credit as you think they ought to have. 
It is for you to say whether you are satisfied that this lot of butter didn't 
have 80 per cent of butterfat while it was in transit.
" There is no offense committed here, gentlemen, unless you are satisfied 
beyond a reasonable doubt that when that butter was taken to the station 
over there, at the South Hero railroad station, and while it was on those cars 
to Boston, in transit, it must have contained less than 80 per cent of butter- 
fat. The evidence of the Government is that it didn't contain 80 percent, 
except one' of the samples. The evidence of the young man that made it is 
that he tested it and it tested all right, 80 per cent. He says he understood 
the law required him to put on weights. He understood that when he was 
before this man down in Boston.
" You take the evidence in the case, gentlemen, and all the circumstances 
and all the inferences to be drawn from the evidence, and, if you are satisfied 
beyond a reasonable doubt, after giving the creamery the benefit of the 
presumption of innocence, if you are satisfied beyond a reasonable doubt 
that when this butter was delivered to the railroad station, and while it was 
in transit to Boston, it didn't contain 80 per cent, you will find the defendant 
guilty under the first count. If you are not satisfied of those facts beyond a 
reasonable doubt you will find it not guilty. As to the second count, take 
into consideration all the evidence in the case. If you are satisfied beyond a 
reasonable doubt that the weight wasn't marked on these 36 tubs of butter, 
you will find the creamery guilty under the second count. If you are not 
satisfied beyond a reasonable doubt that the tubs were not marked, you will 
find the defendant not guilty under the second count. You may take the case, 
gentlemen."
The jury then retired and after due deliberation returned a verdict of guilty 
on the adulteration charge and of not guilty on the misbranding charge, and 
the court imposed a fine of $25.
R. W. DUNLAP, Acting Secretary of Agriculture.