13365. Misbranding- and allesred adulteration of butter. V. S. v. Trinidad 
Creamery Co. Tried to a jury. Instructed verdict of not gruilty 
on the adulteration charge. Verdict of g-uiJty on the misbrand- 
ing charge. Fine, $2,800 and costs. (F. & D. No. 17912. I. S Nos. 
8601-v, 8612-v, 8613-v, 8617-v, 11367-v, 11374-v, 1137&-V, 11377-v, 11378-v, 
11391-v, 11394-v, 11399^-v, 11400-v. 11426-v.
On February 11, 1925, the United States attorney for the District of Colorado, 
acting upon a report by the Secretary of Agriculture, filed in the District Court 
of the United States for said district an information against the Trinidad 
Creamery Co., a corporation, Trinidad, Colo., alleging shipment by said com- 
pany, in violation of the food and drugs act as amended, on or about February 
1, 1923, from the State of Colorado into the State of Texas, and on or about 
the respective dates of February 9, 14, and 23, March 2, 20, 22, 23, and 30, and 
Ajjril 6 and 8, 1923, from the State of Colorado into the State of New Mexico, 
of quantities of butter which was misbranded and a portion of which was 
alleged to be adulterated. The article was labeled in part, variously: " None 
Nicer Brand Butter * * * One Pound Manufactured By Trinidad Creamery 
Co. Trinidad, Colo."; " Mountain States Brand Creamery Butter One Pound 
Net * * * Manufactured By Trinidad Creamery Co. Trinidad, Colo."; 
" Sunset Gold Creamery Butter * * * 1 Lb. Net" ; and " Columbine Brand 
Pure Creamery Butter Manufactured By * * * Trinidad Creamery Co. 
Trinidad, Colo.    Columbine Brand 1 Lb. Net When Packed."
Examination by the Bureau of Chemistry of this department of a sample 
consisting of a number of packages from each of the 14 consignments showed 
that the average net weight of the said samples was 15.31, 15.26, 15.37, 15.32, 
15.27, 15.57, 15.49, 15.62, 15.62, 15.63, 15.53, 15.27, 15.68, and 15.59 ounces, re- 
spectively. Analyses by said bureau of 5 subdivisions taken from each of the 
three consignments of the None Nicer brand butter showed that 13 of the 15 
subdivisions ranged from 76.84 per cent to 79.30 per cent of butterfat and 2 of 
the 15 subdivisions contained 80.09 per cent and 80.5 per cent, respectively, of 
butterfat.
Adulteration was alleged in the information with respect to three consign- 
ments of the None Nicer brand butter for the reason that a product which 
contained 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 article purported 
to be.
Misbranding was alleged with respect to all of the consignments for the 
reason that the statements, to wit, " One Pound," " One Pound Net," and " 1 Lb. 
Net," as the case might be, borne on the packages containing the article, were 
false and misleading, in that the said statements represented that each of the 
said packages contained 1 pound of butter, and for the further reason that 
it was labeled as aforesaid so as to deceive and mislead the purchaser into 
the belief that each of the said packages contained 1 pound of butter, 
whereas each of the said packages did not contain 1 pound of butter but did 
contain a less amount. Misbranding was alleged with respect to all the 
product for the further reason that it was food in package form and the 
quantity of the contents was not plainly and conspicuously marked on the 
outside of the package.
Misbranding was alleged with respect to three consignments of the None 
Nicer brand butter for the reason that the statement " Butter," borne on the
said packages, was false and misleading, in that it represented that the article 
was butter, to wit, 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, and for the 
further reason that it was labeled " Butter " so as to deceive and mislead the 
purchaser into the belief that it was butter, to wit, a product which should 
contain not less than 80 per cent by weight of milk fat, whereas it was a 
product which did not contain 80 per cent by weight of milk fat but did con- 
tain a less amount.
On April 15, 1925, the case came on for trial before the court and a jury. 
After the submission of evidence and arguments by counsel the court delivered 
the following instructions, directing a verdict for the defendant on the 
adulteration charges and submitting the misbranding charges to the jury 
<Symes, D. J.) :
THE COURT:
" Gentlemen of the jury, you have listened carefully and patiently to this 
evidence. Counsel for both sides have given you the benefit of all the testi- 
mony that can be produced upon the charges made here, and have performed 
their part of the case in a very creditable manner as is their duty<as officers 
of this court. You are also officers of this court, in that it is your duty now 
to determine the facts of this case  and  bring in your verdict accordingly.
" The information in this case contains 31 counts. In other words, the de- 
fendant is charged with 31 different offenses. The court instructs you, how- 
ever, to find the defendant not guilty on three of those counts, to wit, the 
seventeenth, the twentieth, and twenty-fifth, because in the opinion of the 
-court there is not evidence enough to substantiate those counts, and if you 
should find the defendant guilty on those counts, it would be the duty of 
the court to set them aside in- the performance of its function as judge. 
That leaves for your consideration, then, 28 counts, and you will bear in 
mind that each count is a separate charge, and that the defendant is en- 
titled to separate consideration in the case on each count and a verdict of 
guilty or not guilty on each count. It is, therefore, necessary for you. to 
segregate the evidence and apply that evidence to each count which is 
material and bears upon it, and no other evidence.
" The evidence offered by the Government in this case is in part at least that 
a Government inspector, charged with the enforcement of the food and drugs 
act. which it is alleged was violated here, went out into the field and found 
14 different places, I think, in New Mexico and Texas, where there was butter, 
the product of the defendant, for sale. It is admitted by the defendant and 
it stands undisputed that this particular butter referred to in the information 
was offered and put into and shipped in interstate commerce by the defendant 
from a point in the State of Colorado to points in other States. Therefore it 
was an interstate shipment and comes directly under the statute in question. 
This inspector, according to his evidence, at Dalhart, Tex., found a consider- 
able quantity of this butter, took samples of it and weighed it and found 
that it averaged 2.55 per cent short. He then went to Santa Rosa and there 
found 61 pounds of butter of the defendant, and that, according to his testi- 
mony, was 2 per cent short in weight. He then went to a place in New Mexico, 
East Vaughn, N. Mex., and there he found butter of the defendant which aver- 
aged 4.56 per cent, or better than 4.5 per cent, short in weight. The maximum 
of some of that butter was 12 per cent short. He then went to the Piggiy Wiggly 
store at Carlsbad, New Mex., and found 60 pounds there, 2 boxes, and weighed 
the samples from that, and they showed net 2.94 per cent short. The maximum 
was 7 per cent short, and most of it was under 9 per cent, and so on, at all the 
different places he found butter of the defendant, and in all cases that he has 
testified to, according to his evidence, the percentage of shortage ran from 2 
per cent up to, as I have stated, over 4.5 per cent. He testified that wherever 
he went and found any considerable quantity of this butter and weighed it, 
he found it short without exception, taking an average of each consignment 
that he found, that is, what was left of it. He then also described the condi- 
tion of the butter as he found it; that it was at most places being kept in a 
cool place, and was firm and in good condition. He then testified as to experi- 
ments that he had made, and said that, allowing for the necessary shortage 
due to dry weather and other conditions, the shortage he found exceeded that 
necessary under such conditions-in his opinion, of course, that is. He then 
described his visit to the factory of the defendant and what he saw there. 
We have, then, the testimony of a qualified Government chemist, Mr. Feldstein,
51169-25 2
Vv-ho made various tests of this butter which was shipped by this gentleman 
in the field, and you will recall what he testified to. Another Government 
chemist testified as to the analyses of samples that he made. That was in the 
main the testimony offered by the Government.
" Then the defendant offered as a witness, among others, Mr. Jacobson, sec- 
retary and manager of the defendant, who stated this factory had a daily out- 
put of 2,500 pounds. He described in detail the method of manufacture and 
the various tests that they made, and the precautions that were taken in order 
to keep the butter from being short weight and to comply fully with the law 
and the requirements of the Government inspectors. He then described the 
scales, and there was some testimony in regard to his statements at the hear- 
ing the Government afforded the defendant before the department at Denver. 
Then a man named Fulton, the former butter maker of the defendant, de- 
scribed his work, which was that of butter maker, and the precautions taken. 
Similar testimony was given by Mr. Fulton, by Miss Flaiz, and by two or 
three other young ladies, and also by the vice president of the company. His 
work, according to his testimony, was mostly official. There was some con- 
versation with the weight inspector, who at various times, I believe, found, or 
in a few instances anyhow found, the scales inaccurate, sometimes overweight 
and sometimes underweight, as I recall the testimony. Then we had the 
weight inspector who did not qualify as an expert because he had no expe- 
rience or qualifications, and I don't think his testimony is very good one way 
or the other, but that is, of course, for you to judge. We then had Mr. Osburn 
of the State Agricultural College, a very competent gentleman, well qualified 
to testify as to what he did testify to. He testified as to the variations in 
butterfat and butter content that necessarily take place, and he stated that those 
ran as high as 3 per cent or 4 per cent, and that the defendant's methods as 
far as he knew constituted good practice in that particular trade, and that it 
was impossible to keep every pound up to 80 per cent of butterfat without 
making an impure product.
" The Government then called Mr. McKendrie of the Beatrice Creamery in 
rebuttal. He disagreed with Mr. .Jacobson as to the accuracy of some of his 
tests. I think that, in substance, is the testimony as I recall it. The court 
instructs you, however, gentlemen, that you are the sole judges of the facts, 
and it is for you to say what has been proven and what has not been proven 
as a matter of fact, and decide the issues of fact accordingly, without being 
influenced by the court, the remarks of the court on the facts, of course, being 
given only to aid you if you so desire, but you are the sole judges of the facts, 
and it is for you1 to decide the facts and what has been proven and what Ifas 
not been proven according to your own view of the testimony, and you, of 
course, had the same opportunity to hear the witness that the court did.
" Counts 1, 3, 5, 7, 9, 11, 13, 15, 23, 28, and 30 of this information charge that 
on the dates mentioned therein certain shipments of food, to wit, butter, were 
made by the defendant from its plant in Trinidad to the consignee named at 
points outside of the State; in other words, in interstate commerce. This is 
not denied by the defendant. These counts further charge that the contents 
of these shipments were misbranded within the meaning of the law known as 
the pure food act, in that the labels on each of said separate packages of butter 
bore this statement, to wit, ' One Pound'; that this was false and misleading 
because it purports to and did represent to the purchaser that each of said 
packages contained a pound of butter, when, as a matter of fact, they did not 
contain a pound but a smaller quantity. The statute in question on which this 
information is based, parts of it which are applicable here, reads as follows: 
' The term " misbranded," as used herein, shall apply to all drugs or articles oC 
food which enter into the composition of food, the package or label of which 
shall bear any statement, design, or device regarding such article, or the ingre- 
dients or substances contained therein which shall be false or misleading in 
any particular.' And then it goes on in regard to packages of food, and says 
' Third. If in package form'-that is, if the food is in package form such as 
butter-' the quantity of the contents ' [it] shall be a violation of the law ' if the 
quantity of the contents be not plainly and conspicuously marked on the out- 
side of the package in terms of weight, measure, or numerical count.' In other 
words, that means so many pounds of butter, so many bushels of apples, or so 
many pieces of something else, whatever the particular product in question 
may be.
" Congress also gave the department power to make certain regulations for 
carrying out this act.   These regulations, of course, can not add to or detract
from the statute, but aid in its enforcement and understanding. There is one 
which is applicable to this case, which reads as follows-or before I refer to 
that I should go on and say that the statute says this: ' Provided, however, that 
reasonable variations shall be permitted,' and tolerances shall be allowed in 
effect according-as established by rules and regulations made in accordance 
with provision three of the act. The regulation in regard to tolerances is that 
' Discrepancies due exclusively to errors in weghing, measuring, or counting 
which occur in packing conducted in compliance with good commercial prac- 
tice.' It therefore follows, gentlemen, that if you are convinced beyond a 
reasonable doubt, after a careful consideration of all the evidence, that at least 
as to these particular counts or any one or more of them the labels did not 
represent the true weight of the butter content at the time of shipment, but 
were false and misleading under the law and regulations I have read to you, 
then there was a misbranding under the law referred to, and it is your 
duty to find the defendant guilty on one or more of such counts.
" Counts 18, 21, and 26 likewise charge misbranding within the meaning of 
the act of Congress, in that the statement ' Butter One Pound,' borne on the 
label of the package containing the article, was false and misleading, in that 
it represented the article to be butter, when, according to the Government, it 
was not butter, because butter, according to the law, must contain 80 per cent 
by weight of milk or cream fat, as prescribed by the act of March 4, 1928. 
There is evidence both ways on this question; the Government that the butter 
referred to contained less than 80 per cent by weight of milk fat, and the 
defendant that it contained more. If, after a careful consideration of the 
evidence on this particular question, or these particular counts, rather, you 
find beyond a reasonable doubt that the shipments of the defendant referred 
to in these three counts or any of them at the time of the shipment contained 
an article which was labeled butter, but which contained less than 80 per cent 
of milk fat, then you should find the .defendant guilty on one or more of these 
counts.
" There is a great deal of evidence pro and con in regard to the butter con- 
tent, and that evidence, of course, applies only to these particular counts, and 
not the question of short weight. The following counts, to wit, 2, 4, 6, 8, 10, 12, 
14, 16, 19, 22, 24, 27, 29, and 31, charge that the contents of certain packages 
of butter shipped by the defendant in interstate commerce, which shipments are 
admitted by the defendant, were not plainly and conspicuously marked on the 
outside of the package in terms of weight, measure, or numerical count. The 
proof offered by the Government on this is the testimony of their witnesses to 
the effect that these packages or shipments of butter bore a conspicuous mark 
or label, which is admitted, I believe, stating that they contained 1 pound net 
of butter, when, as a matter of fact, according to the Government's evidence, 
they contained less than a pound of butter at the time of shipment, and there- 
fore were misbranded in that they did not give the correct weight-all in viola- 
tion of section 8 of the pure food law which I have read to you. Therefore, if 
you are convinced beyond a reasonable doubt that any of the packages of 
butter referred to in these particular counts did not contain the amount of 
butter stated on the label or carton containing them, to wit, 1 pound, when 
shipped, after allowing for reasonable variation in accordance with the regu- 
lation I have read to you, then it is your duty to find the defendant guilty on 
one or more of said counts, as you may decide.
" The court instructs you, gentlemen, that there must be proof in cases of 
this kind of an intent to violate the law on the part of the defendant. An 
intent implies knowledge of the violation, but such intent need not be proved 
separately and apart from the other facts, necessarily, because intent is a state 
of mind and the intent of a party may be proved by his acts and conduct under 
any particular set of facts or circumstances, because everybody is presumed 
to intend the reasonable and probable consequences that may reasonably be 
anticipated and follow from his acts. In other words, if, as reasonable men, 
you can say that the defendant put short weight into these packages, or should 
have known that it was short weight, and that that was the rule and not the 
exception in reference to the shipments referred to in the counts, then you may 
be justified, if you so find that he intended to do that, because short weight 
would be the reasonable and probable consequences of his act. Further, in 
this case the defendant is a corporation, and therefore is to be judged by the 
acts and intents of its officers, agents, and employees when acting Vithin the 
scope of their duties, and there is no question here, as I recall the evidence,
but what these various employees acted within the scope of their duties in 
matters that have been testified to. They, when acting within the scope of 
their authority, act and speak for the corporation, and it therefore follows 
that their acts and conduct are the acts and conduct of the corporation, and 
that the latter is responsible for any violation of law committed by them in 
the course of their dut.es.
" The court further instructs you that in determining the weight of each 
pound package of butter you shall make allowances for any reasonable dis- 
crepancies in the weight of each 1-pound package due exclusively to differ- 
ences in atmospheric conditions at various places, which discrepancies un- 
avoidably result from the ordinary and customary exposure of the butter to 
evaporation or to the absorption of water by the wrappers and containers; and 
that a crime or misdemeanor consists in the violation of a public law, in the 
commission of which there must be a union or joint operation of act and inten- 
tion. Intention may be manifested by circumstances capable of proof. The 
object of this statute, gentlemen, of course is to protect the purchaser or con- 
sumer of food products that move in interstate commerce, and to that end Con- 
gress has enacted that the quantity of the contents of any food products in 
package form must be plainly and conspicuously marked on the label in terms 
of weight, measure, or numerical count, so the purchaser thereof may rely upon 
them and get what he has the right to ask for, and determine for himself what 
he will buy and receive, and to accomplish this result the law condemns as 
guilty any person or corporation that introduces into interstate commerce any 
article that is misbranded within the terms of the statute and the regulation 
referred to, and misbranding includes a failure to state the weight of the con- 
tents of the package correctly. The main question in the case for you to de- 
termine is whether the butter in question was misbranded; that is, under the 
statutes and regulations which I have read, did it fail to come up to the repre- 
sentations or statements made on the label? If so, the defendants are guilty, 
because the act declares that any person who shall ship or deliver for ship- 
ment from one State to another, food in package form that bears a label that 
is false or misleading in any particular, shall be guilty of a misdemeanor as 
charged in the information.
" The evidence of the Government is that the particular butter referred to 
in the counts in this information was all underweight, the percentage of under- 
weight varying, as you will no doubt recall from the evidence. This evidence 
stands uncontradicted, as the defendant has offered no evidence as to the 
weight of the particular shipments referred to. They have, however, offered 
considerable evidence showing their methods of manufacture, methods of weigh- 
ing, and the care taken by them to comply with the law. This is all competent 
for you to consider along with the other evidence, but it is not evidence, of 
course, on the question of what the shipments referred to in the information 
actually contained and what they actually weighed. No amount of care 
exercised or precautions taken will excuse defendant, if you find that, after 
making allowances for honest or occasional mistakes and variations or toler- 
ances allowed by the statute and the regulations made pursuant thereto, 
which I have called to your attention, the butter was underweight when 
shipped by the defendant. Anyone engaged in this business is conclusively pre- 
sumed to know what the law is, and they must substantially comply with it 
at their peril. They must so equip their factories with proper scales and con- 
duct their business that the law will be complied with, and if you find as a 
matter of fact that that part of their product which was shipped in interstate 
commerce and referred to in the information did not comply with the law, it is 
some evidence that they did not take the necessary precautions in the conduct of 
their business.
" It is clear from the evidence that butter varies in its moisture content and 
that it can not be absolutely controlled; that it is liable to dry out, and thereby 
it loses weight after it is manufactured. That fact, however, seems to be well 
known to the trade, and the defendant, of course, is presumed conclusively to 
have full knowledge of that fact and the necessary results that follow there- 
from, and in manufacturing and shipping their product in interstate commerce 
they must make reasonable allowance for this variation and see that each pack- 
age contains, as a usual thing, when shipped, the amount of butter that the 
label says it does.
" You will decide the case, gentlemen, solely upon the law, irrespective of 
your opinion of the law. It is the province of the legislative branch of the 
Government to make and repeal laws.   The only province the court has-and
you are a part of the court-is to enforce the law fairly and fearlessly, irre- 
spective of what your personal opinion may be upon it.
" There is some evidence here, and it is admitted, that this defendant has 
been convicted in this court of a previous violation of this law. The court 
instructs you, however, that that must not in any way influence your verdict in 
this case. That simply goes to the question of penalty if the defendant is 
convicted. It is on trial simply for the offense as charged in this information 
and nothing else.
" The court further instructs you that it is the duty of the Government to 
find the defendant guilty beyond a reasonable doubt. ? The Government must 
prove the defendant's guilt, and the defendant need not prove its innocence, 
and if you have any reasonable doubt as to any fact necessary to constitute 
the defendant's guilt on any one of the counts, it is your duty to give the 
defendant the benefit of that doubt and return a verdict of not guilty. You 
are prohibited, however, by law and your oath which you have taken from 
going beyond the evidence to seek for doubts upon which to acquit the de- 
fendant, and you must confine yourselves strictly to a dispassionate and an 
impartial consideration of the evidence. You must not have recourse to ex- 
traneous facts or circumstances. You are the exclusive judges of the facts, 
and it is for you to find from the evidence what has been proven and what 
has not.
"A doubt, to justify an acquittal, must be a reasonable doubt, not imaginary 
or conjectural, and must arise after a candid and impartial consideration of 
the evidence, and unless it is such a doubt, for instance, as, were it interposed 
in the graver transactions of your everyday business life, would cause you to 
hesitate and pause as reasonable men, then it is not a reasonable doubt and 
would not authorize a verdict of not guilty.
" The court further instructs you that you are the sole judges of the credibil- 
ity of the witnesses and of the weight to be given to the testimony of any par- 
ticular witness. In judging of their credibility and the weight to be given 
to their testimony, it is proper, if you so desire, to take into consideration their 
manner or demeanor upon the witness stand, their bias or interest in the out- 
come of this case, if any has been shown by them, and any other fact which 
appeared upon the witness stand which you think affects the Aveight to be 
given to. their testimony. Of course, if you believe that any witness has tes- 
tified falsely as to any material fact, you are at liberty to disregard his evi- 
dence entirely, except so far, of course, as it is corroborated by other com- 
petent evidence.
These, gentlemen, are the instructions which will govern you in deciding 
this case, and you will consider each instruction of equal weight and take 
and consider them all together, being bound by the instructions on the law as 
given you by the court. Decide the case solely upon the evidence, because the 
arguments of counsel, the remarks of the court, and the rulings -of the court 
upon evidence stricken out, and evidence stricken out, will not be considered by 
you in deciding the case.
"Are there any exceptions to the charge of the court? "
Mr. BOCK. " I understood the court to say that they found it short with- 
out exception."
The COURT. " I mean every place he went."
Mr. BOCK. " The court "meant as an average weight. The defendant asks 
to take exception in regard to the county scale inspector, as to the weight of 
his evidence. The defendant also desires to save exception as to the instruc- 
tion that the defendant should have known that his scales were1-what weight ; 
if he didn't know, he should have known. We save exception to that part of 
the instruction. The charge on the ground of misbranding, the court did not 
put in the element of intent in that particular definition. Nearly all the in- 
structions on intent include the element to deceive and mislead. We except 
to that. The defendant further excepts to the instruction of the court that the 
manufacturer must make allowance for the variations, it being the viewpoint 
of the defendant that the retailer must make the allowance and not the manu- 
facturer. The defendant also desires to save an exception to the court's 
instruction on the second offense, it being prejudicial, as to being any part 
whatever of the instruction, because it only relates to sefitence and not the 
question of guilt."
Mr. IRELAND. "We desire to ask that the regulation under (1) of section 8 
be given.   I desire to save my exception to the instruction on intention."
' The COURT. *" Gentlemen, the court further instructs you that what I said 
in reference to the evidence of the county inspector, as I recall the evidence, 
was that he had had no experience or training, and testified that the weights 
he used in testing he had not weighed. The court wants to emphasize that 
you are the sole judges of the facts in deciding what the witnesses testified to. 
You had the same opportunity to hear the evidence that the court did, and 
you will decide the evidence on the facts uninfluenced by the court. In speak- 
ing of intent, that means an intent to violate the law. I further call your 
attention to the fact that the regulations referred to, part of which I read, also 
contain this: ' Discrepancies '-that means variations-'under classes (1) and 
(2) of this paragraph'--paragraph (1) being the one I read to you-'shall be 
as often above as below the marked quantity.' Are there any further excep- 
tions?"
The jury then retired and after due deliberation returned a verdict of guilty 
on the misbranding charge, and the court imposed a fine of $100 on each of 28 
counts, a total of $2,800, together with the costs.
C. F. MARVIN, Acting Secretary of Agriculture.