21678.  Adulteration of apple scrap.    U. S. v. Washington Dehydrated Food 
Co.     Tried   to  a  jury.     Verdict   of  guilty.     Fine,   $50   and  costs.
(F. & D. no. 30208.    I.S. no. 53935.)
This case was based on a shipment of apple scrap that was found to con- 
tain lead and arsenic in amounts that might have rendered it injurious to 
health.
On July 3, 1933, the United States attorney for the Eastern District of 
Washington, acting upon a report by the Secretary of Agriculture, filed in 
the district court an information against the Washington Dehydrated Food 
Co., Yakima, Wash., alleging shipment by said company in violation of the 
Food and Drugs Act, on or about September 17, 1931, from the State of Wash- 
ington into the State of Missouri, of a quantity of apple scrap that was 
adulterated.
It was alleged in the information that the article was adulterated in that it 
contained added poisonous and deleterious ingredients, arsenic and lead, in 
an amount which might have rendered the article injurious to health.
On October 5, 1983, a plea of not guilty having been entered on behalf of 
the defendant company, the case came on for trial before a jury. On October 
6. 1933, the trial was concluded, and the court submitted the case to the jury 
with the following instructions (Webster, D.J.) :
" Gentlemen of the jury: Now that you have heard all of the evidence in 
this case, both that in behalf of the Government and that in behalf of the 
defendant, and have with commendable patience listened to it all, and to the 
arguments by counsel for the respective sides, it beeomes the duty of the court 
to explain to you the essential elements of the charge set forth in the infor- 
mation in this case and to instruct you upon the applicable rules and principles 
of law by which you are to be guided in your deliberations, and it is your duty 
to accept these instructions as correct and, so far as the law in the case is 
concerned, to be guided by it.
" In this case the Government, the United States of America, has filed an 
information against the Washington Dehydrated Food Co., a corporation, 
wherein it seeks to recover a penalty against that company for an alleged vio- 
lation of the National Pure Food and Drug law. The defendant company 
has filed an answer, which I will refer to later, and which will clearly cut 
the issue that you are to determine by your verdict in this case.
" This case is a criminal case in its characteristics, that is to say, the same 
presumptions attach as attach to a case where an individual is accused of vio- 
lation of the law, and the same competent evidence is required in order to 
sustain as is required in the case of a criminal prosecution.
" The defendant in this case by its answer has put in issue the essential 
allegations of this charge set forth in the indictment, and the defendant is 
entitled to the same presumption of innocence that attaches to all persons 
accused of crime, and that presumption is one of the substantial and important 
rights of the defendant not to be ignored or lightly considered either by the 
court or by the jury, and is one of the safeguards that the law places upon
all persons, corporations, or concerns charged with violation of the law, and 
it continues with them and attaches to them throughout all stages of the 
trial, and throughout all stages of your deliberations until it has been met 
and overcome by the evidence in the case beyond all reasonable doubt, and by 
the expression, ' reasonable doubt *, as used in these instructions, is meant just 
what those words in their ordinary and everyday use imply. They have no 
technical, mysterious legal meaning different from their ordinary meaning. 
A reasonable doubt is a doubt which is based upon reason or is a doubt which 
is not unreasonable. It is such a doubt as, if entertained by a person of 
ordinary prudence and decision and judgment, would allow it to have in- 
fluence with him, or cause him to pause or hesitate before acting. It must 
be a real and substantial doubt, and it must arise out of an honest-minded, 
common sense, consideration, and application of the evidence in the case, or 
from the lack of evidence.
" If, after carefully considering, analyzing, and comparing all of the evi- 
dence in this case, Eau are able to say upon your oaths and consciences as 
jurors that from the evidence you have an abiding conviction of the defend- 
ants' guilt to a moral certainty, then you are convinced beyond all reasonable 
doubt, and should find a verdict of guilty; but, after considering, analyzing 
and comparing the evidence you are unable to say that you do have an abiding 
conviction of guilt but, on the contrary, there is in your mind a doubt for 
which you are able to assign a reason or a series of reasons satisfactory to 
yourselves as reasonable men, then there is a reasonable doubt, and any 
such doubt must be resolved in favor of the defendant company, and your 
verdict must be, 'not guilty.'
"You are the sole and exclusive judges of what is the evidence in the case, 
and of the weight and credit to be given to the testimony of each witness 
that testified before you. In discharging that duty you are at liberty to take 
into consideration the conduct, appearance, and demeanor of the witness 
while testifying, the apparent candor or frankness displayed by the witness, 
or want of those qualities, if any such want appears, the intelligence or lack 
of intelligence displayed by the witness, the opportunity or lack of opportunity 
on the part of any witness of knowing or being informed about the matters 
on which, the witness testified, the Interest or lack of interest the witness 
may have in the outcome of this case, the reasonableness of the story told by 
the witness, its probability or improbability measured by your experience in 
life—in short, all the circumstances attending the witness as disclosed from 
the witness stand, and, in the light of all those considerations, give to the 
testimony of each witness that fair and reasonable weight which in your 
practical judgments as men of commonsense it impresses you as justly en- 
titled to receive at your hands, and no more.
" Ordinarily in the trial of cases in court, witnesses are confined to testifying 
to facts within their personal knowledge, and are not permitted to draw con- 
clusions or to express opinions. That is the general rule, but to that rule there 
is an exception which is well established as a rule itself, and that exception is 
this: That where the points in issue arise out of a particular science or art con- 
cerning which there are trained minds who have special knowledge, learning 
or schooling in that particular field, such persons are called ' experts', and in 
their cases they are entitled to express opinions concerning the matters in 
issue. But, of course, you weigh and evaluate the testimony of experts 
precisely as you weigh the testimony of a nonexpert witness, taking into 
account its probability, the reasonableness of it, the schooling of the person 
giving it, the learning that he has in his profession, the breadth of his 
experience, and all of those things which go to give weight to or detract from 
the value of the testimony of the expert. It is not intended that the expert 
shall become a member of the jury and sit as one of your number in determin- 
ing the case. His testimony is submitted for such consideration as it im- 
presses you it is entitled to receive in order to enable you to decide the 
issues in the case.
" Now, as I have said, the information in the case is based upon the National 
Pure Food and Drugs Act, and, omitting the formal portions, it reads, ' That 
the Washington Dehydrated Food Co., a corporation organized and existing 
under the laws of the State of Washington and having its principal place 
of business in the City of Yakima, State of Washington, but within the south- 
ern division of the Eastern Judicial District of Washington aad within the 
jurisdiction of this court, on or about the 17th day of September, in the year
1931, then and there in violation of the act of Congress of June 30, 1906, 
known as the Pure Food and Drugs Act, did unlawfully ship and deliver for 
shipment in railroad car REX-624, via Northern Pacific Railway Co., a corpora- 
tion, a common carrier, and other connecting carriers, from the City of Yakima, 
State of Washington, to the City of St. Louis, State of Missouri, consigned to 
order of Washington Dehydrated Food Co., Notify Best Clymer Division 
Preserves and Honey, Inc., St. Louis, Mo., a certain consignment, to-wit, a 
number of unlabeled bags containing an article invoiced as 'scraps', and 
billed as 'evaporated apple scraps', and designed and intended to be used 
as an article of food, to-wit, apple pomace. That said article of food, when 
shipped and delivered for shipment as aforesaid, was then and there adulterated 
within the meaning of said act of Congress in that it contained added poisonous 
and deleterious ingredients, namely, arsenic and lead, in an amount which 
may have rendered said article injurious to health, contrary to the form of 
the statute in such ease made and provided.'
" The defendant company filed a plea and answer in the case in which it says 
that it admits that it is a corporation organized under the laws of the State of 
Washington, with its principal place of business in Yakima, and at the time 
mentioned in the information shipped in railroad car REX-624, via Northern 
Pacific Railway Co. and other connecting carriers from Yakima, Wash., to St. 
Louis, Mo., consigned to its order, Notify Best Clymer Division Preserves and 
Honey, Inc., St. Louis, a consignment consisting of a number of unlabeled bags 
containing an article invoiced as ' scraps' and billed as ' evaporated apple 
scraps', and referred to and called ' apple pomace', but denies each and every 
other allegation and charge set forth in the information.
" Section 2 of the National Food and Drugs Act provides: ' The introduction 
into any State or Territory or the District of Columbia from any other State or 
Territory or the District of Columbia or from any foreign country, or shipment 
to any foreign country of any article of food or drugs which is adulterated or 
misbranded within the meanings of this act, shall be punished as the statute 
prescribes.'
" You will notice that the offence consists of two elements, (1), that of ship- 
ping in interstate commerce a thing that this statute defines as adulterated 
food, product or commodity, and the nature of the adulteration alleged in the 
indictment in this case that it contained poisons, namely, arsenic and lead, to 
the extent that the substance in question was injurious to health.
" Now, the statute upon which this indictment is based defines food for the 
purposes of this act in this language: ' The term " food ", as used in said sec- 
tions (referring to the sections in question here), shall include all articles used 
for food, drink, confectionery by man or other animals, whether simple, mixed 
or compound.'
" Now, the burden is upon the Government in this case to establish that the 
apple pomace in question here was an adulterated food substance or commodity, 
and the statute defines a large number of classes of adulterated food, but the 
portion of the statute in violation in this case reads as follows: ' If it contains 
any added poisonous or other added deleterious ingredients which may render 
such article injurious to health, it is adulterated.' Now, you will notice that 
the definition of the word ' food' includes, ' articles used for food either by man 
or other animals', and in view of that fact, it becomes necessary for me to 
separate this case into its two branches and to instruct you upon the rules of 
law applicable to each because of the character of the substance with which we 
are dealing here.
" There is evidence in this case tending to show that apple pomace such as 
was shipped in this case is suitable for and is used as a food for animals, 
namely, dairy cow, and the question for you to determine in the aspect of 
whether it is injurious to health, of course, has to do with the health of the 
class of animals involved. In the case of the article being used by human 
beings and for human consumption, the standard of adulteration must be meas- 
ured as human health, whereas if it is used for food for animals, it must be 
considered by the standard of health of the animals which use it or to which 
it is fed.
"' Now, the pomace in the form in which it was shipped in this case is shown 
to have been used as food in the feeding of cows, and consequently, your ques- 
tion will have to do with this point: Was the pomace which was shipped in 
this case adulterated in that it had a sufficient quantity of arsenic and lead, or 
arsenic or lead to render it injurious to the health of animals of that character 
"Now, this substance, while it is not consumed by man in the state in 
which it was shipped in this case, but required to be used and processed and 
put in a modiiied form before it was used for human consumption, I instruct 
you, as a matter of law, that it was a human food within the meaning of this 
statute, and the question for you to determine in this case is this: Since the 
commodity as shipped is not used by human beings as food, but is converted 
into other substances that are concocted or extracted from it, the question is, 
was that substance in the form in which it would have to be placed to be fit 
for human consumption adulterated in the meaning of this statute? If the 
thing as shipped to St. Louis, if this substance, this apple pomace, in order 
to be rendered fit for use as human food had to be put through a process which 
was of a kind essentially and inherently to reduce in whole or in part the 
arsenic or lead,, or arsenic and lead which was upon it to a point where it was 
not injurious to public health in the form in which it would be consumed by 
human beings, it would not be an adulterated product within the meaning of 
this statute. But if, after it had been processed, if after it had been placed 
in the form in which it was intended to be used and consumed by human 
beings it did contain arsenic and lead, or arsenic or lead, to the extent that its 
consumption by human beings would be injurious to human health, then it is 
an adulterated food within the meaning of this statute, and your verdict 
should be accordingly. Of course, in determining the standard of health in 
the case of the consumption of the thing by man, the standard is human 
health, and in considering the consumption of the food by animals, it is the 
standard of health of the kind of animals which consume it, and in determining 
that standard you must take into consideration the entire class involved, the 
old and the young, the weak and the strong, and the sick and the well, and look 
at it in that light, and if it is a substance which, if administered to animals or 
consumed by man renders it injurious to the health of either, then the substance 
is adulterated within the meaning of this statute, and its transportation in 
interstate commerce constitutes a violation of this law.
" It will require the concurrence of the entire jury in order to return a 
verdict. When you retire to your jury room you will select one of your number 
as foreman who will sign your verdict when it is agreed upon, and who will 
represent you as your spokesman in the further proceedings in this case.
" There has been prepared for your convenience a blank form of verdict, 
and wherever the word ' guilty' appears in this form, immediately preceding 
it there is a space underscored on the typewriter in which the word 'not' 
can be inserted in the event your verdict is 'not guilty'. You will, of course, 
understand that the form of this- verdict is not intended to indicate anything 
as to what is expected of you in the decision of the case. It is prepared in 
this way only for a matter of convenience, it being easier to write in words 
than it is to erase them.
" Now, gentlemen of the jury, in considering this case, it is necessary to 
remind you that the laws of the United States are made to be enforced in 
cases where they are violated, and the outside and extraneous considerations 
that may enter into if have no place in the minds of honest jurors. The ques- 
tion in this case as a matter of law is the question as I have defined it for 
you, and the question of guilt or innocence in this case depends upon whether 
the proof brings this transaction within its legal principles. If it does, your 
verdict must be measured carefully, and leave the extraneous consequences of 
your verdict rest where they belong—upon the Government and the makers 
of the statute, but not substitute your judgment for the wisdom of the laws 
or lawmaking body and write them out of the books. By this I mean to say 
to you nothing about the merits of the case. If you believe beyond a reasonable 
doubt that the guilt of this defendant has been proven, no matter how serious 
the consequences of the violation may be, it is equally your duty to return a 
verdict of guilty. Let your verdict be what the name implies, a finding of the 
truth, and when finding it, declare it. If you are convinced beyond all rea- 
sonable doubt, just declare it. If you entertain a reasonable doubt of the 
guilt having been established, then, by the same token, declare that." (Bailiffs 
duly sworn and jury retired.)
The jury after deliberation returned a verdict of guilty with a recommen- 
dation that a nominal fine be imposed. On October 12, 1933, a motion for a 
new trial was denied, and the court imposed a fine of $50 and costs.
M. L. WILSON, Acting Secretary of Agriculture.