4222. Adulteration of dressed poultry.    TT. S. v. H. & H. Poultry Co., Homer H.
Pepper, and Samuel BC. San. Pleas of not guilty. Tried to a jury. 
H. & H. Poultry Co. found guilty and fined $1,500. Directed verdict of 
not guilty with respect to Homer H. Pepper. Jury disagreed with respect 
to Samuel H. San and nolle prosequi ordered. (F. D. C. No. 7320. Sample 
No. 69349-E.) 
On October 20, 1942, the grand jurors of the United States in and for the 
District of Delaware presented an indictment against the H. & H. Poultry Co., 
Selbyville, Del., Homer H. Pepper, and Samuel H. San, alleging shipment on 
or about February 23, 1942, from the State of Delaware into the State of New 
York of a quantity, of poultry that was adulterated in that it consisted in whole 
cr in part of a decomposed substance, and in that it was in whole or in part 
the product of diseased animals, namely, diseased poultry. ,
- On November 9, 1942, pleas of not guilty having been entered on behalf of 
the defendants, the case came on for trial before the court and a jury.   The 
/trial was concluded on November 10, the court delivering the following instruc- 
tions to the jury: •
LEAHY, District Judge: "In this case the United States has brought an indict- 
ment against H. & H. Poultry Company, one Samuel San, and one Homer H. 
Pepper. While you were, out to lunch I heard an argument on behalf of Mi. 
Tunnell, asking the court to direct a verdict of not guilty as against Mr. Pepper 
for the reason there was no testimony in this case at all connecting him with 
the enterprise. I have found in favor of Mr. Tunnell insofar as;Mr. Pepper iV 
concerned. It is my recollection that while his name was mentioned they, have 
not connected him into the enterprise and it is, my duty to direct you to bring 
in a directed verdict of not guilty-as to Mr. Pepper.    ,,
We have got to decide this case on the facts presented before you. 
"In this case the defendant maintains: a place of business in Selbyville, Del;, 
and the indictment charges that on February 23d of this year t]ie defendants?, 
that is, the corporation "and Sahn, being the only defendant left, introduced 
into interstate commerce at Selbyville, Del., and consigned to Loyal Blanchard - 
in New York, two barrels containing dressed chickens. The Government claims 
these birds were, under the Federal law, adulterated.
"Let us look at the statute. I am only going to give you the portions of the 
statute which come within the channels of this indictment This indictment 
does hot charge that the goods were unfit for food, the words of the statute is 
that they were putrid,.,but the Government has restricted itself in its charge 
in the indictment and to its proof that the fowl was decomposed and diseased. 
Let us look at the statute. It'provides: 'The following is prohibited, the intro- 
duction into interstate commerce of any food * * * that is adulterated.' 
Now, we have to turn to another section ofcthe law and find out what food is and 
I find Congress defining food under this act, and I quote 'The term food means 
articles used for food for man or other animals.' Now, we come to what is adulr 
terated food, and I am quoting 'A food shall be deemed to be adulterated- if it 
consists in whole or in part of any decomposed substance or if it is wholly or 
in part the product of a diseased animal.' 
\ "The defendants before you have entered their pleas of not guiity, which 
J. means they deny every material allegation contained in the indictment In 
this case as in all other cases, the burden of proof "is-upon the Government to 
prove the defendants guilty beyond a reasonable doubt, as that term will be 
hereinafter defined for you by me. This burden of proof applies to every ma- 
terial issue in the case and it should be stated that the burden; of proof is 
never upon a defendant to prove himself innocent. Every person charged with 
a criminal act is, by the law, presumed to be.innocent of that charge and the 
defendant in this case is entitled to the presumption of innocence during your 
deliberation and until such time as the Government, by evidence, has convinced 
you beyond a reasonable doubt to the contrary,
"By that I mean that the presumption of innocence is with the defendant, not 
only when he pleaded not guilty and through this whole trial, but always until 
such time as the evidence establishes to your satisfaction, his guilt beyond a 
reasonable doubt. This presumption of innocence is not a mere idle, legal theory 
to be cast aside by the jury, but it is a substantial part of the law of the land 
and follows the defendant throughout the entire case and must not be lost sight 
of by the jury until it has been overcome by evidence establishing the defendant's 
guilt beyond all doubt.
"This rule, which clothes every person accused of crime with the presumption 
of innocence.and imposes upon the Government the burden of establishing guilt 
beyond a reasonable doubt, is not intended to aid anyone who is in fact guilty of 
crime; it is not an aid to him to escape; but it is a humane provision of the law 
intended, so far as human agencies can, to guard against the danger of an innocent 
person being unjustly convicted.
"Whenever in this charge I have used the expression the Government must
prove its case beyond a reasonable doubt that is a doubt which is meant as the
term itself implies—a doubt for which you can give a good reason and not a
speculative or imaginary or conjectural doubt.   It is a doubt which will cause
a reasonable, prudent man to consider, hesitate or waive in the graver and more
important concerns of life.   It is not necessary for the Government to prove the
) defendant guilty beyond all possibility of doubt.   Such is not the requirement
/ of the law and if this would be so, in many cases it would be impossible to prove.
a person guilty. Reasonable doubt is such a doubt that a man of ordinary 
prudence and decision in determining the issues of life concerning his own affairs 
would make him pause or hesitate before arriving at his conclusion.
"It is the function of the court to instruct and charge you upon the law applicable 
to this case. It is the function of the jury, and the law makes you the sole and 
exclusive judges of the facts. You are not bound by any expression of opinion 
which I made through this trial. If at any place in this charge, the court has 
expressed or intimated or should express or attempt to intimate any opinion as 
to the facts, you are not bound upon any such expression and any expression of 
opinion which I may have heretofore made, you will understand, is made for the 
sole purpose of guiding and assisting you and I had no purpose in mind to bind 
you to adopt any such opinion I may have expressed, either direct or by intimation.
"I will charge as to the law: It is the law that whoever directly commits any 
act constituting an offense defined in any law of the United States, or who aids, 
abets or procures its commission, is a principal. I charge you as a matter of law 
that if an agent does an illegal act on behalf of his principal, such agent makes 
not only the principal liable for his act, but himself as well.
"This case, involving as it does, a charge of the commission by the defendants 
of a misdemeanor, is presented by what is called on indictment. I instruct you 
that this indictment is sufficient as a matter of law to justify this prosecution. 
Therefore, it is your sole duty to consider the evidence and to determine whether 
the indictment is supported by the evidence that has been offered by the Govern- 
ment In that connection I will turn the indictment over to you and you will 
read the charges set forth therein and then see if the Government has produced 
evidence to sustain these particular charges.
"As I have heretofore instructed you, not only is one who directly commits 
an act constituting an offense defined in any law of the United States guilty of 
that offense, but one who aids or abets its commission is also liable as a prin- 
cipal. Therefore, if you should find that the defendants or any of them aided 
or abetted the corporation, H & H Poultry Company, Inc., in the commission of 
any of the offenses charged, such person would be as guilty as the corporation.
"Although the individual defendant is referred to in the indictment as an 
officer of the H & H Poultry Company, it is not essential to the Government's 
case that they be shown to be such officer in order to authorize the conviction of 
the remaining defendant. If you find the individual defendant remaining was 
not an officer, but you find he acted for the corporation in the acts complained 
of such defendant may be found guilty. .Moreover, if you find in so acting for 
the corporation such defendant did so as its duly authorized representative, the 
corporation in turn is bound by the action he took on its behalf.
"I instruct you that it is unlawful to introduce or cause to be introduced into 
interstate commerce poultry that constitutes in whole or in part any decomposed 
substance, any poultry that is in whole or in part diseased, or the nroduct of a 
diseased animal. Such poultry is adulterated under the Federal Food, Drug, 
and Cosmetic Act and its shipment from Delaware to another State, New York, 
is prohibited.
"You are further instructed, as a matter of law, that intention or knowledge of 
the defendants that the poultry was adulterated is not an element of the offense 
charged in this case. If you find that any one or more or all of the defendants 
introduced or caused to be introduced, or delivered for introduction or caused 
to be delivered for introduction into interstate commerce poultry that was de- 
composed or was the product of a diseased animal, then you should find for the 
Government.
"In discharging your duty as judges of the facts in this case, you may take 
into account the intelligence or lack of intelligence displayed by any witness, 
the opportunity or lack of opportunity on the part of any witness, to know or 
be informed about the matters upon which he testified. You may also take into 
account the interest any witness may have in the outcome of the case and 
weigh his testimony accordingly.
"I think in all we had 17 witnesses, 7 of which were expert. I shall now 
charge with respect to the law as to expert witnesses. Ordinarily, in the trial 
of cases witnesses are confined in their testimony to facts within their personal 
knowledge and they are not permitted to draw conclusions or express opinions. 
That is the general rule. But there is an exception to that rule where the points 
in issue arise out of a particular science or art concerning which there are 
trained minds who have special knowledge, learning or schooling in that particu- 
lar field.   Such persons are called experts and because of that special training
or learning they are entitled to express opinions concerning the matters at 
issue. You will,1 of course, weigh and evaluate the testimony of the expert wit- 
nesses in this case precisely as you weigh the testimony of any non-expert wit- 
nesses ; that is to say, you will take into account the probability and reasonable- 
ness of the matters to which they have testified, the schooling of the person 
giving it, the learning that he has in his profession, or the want of it, and the 
breadth of his experience in the field which would enable him to arrive at a 
correct conclusion. In other words, his testimony should be given such weight 
as you believe it entitled to receive.
"As I said before, you are the sole judges of the facts in this case in determin- 
ing the weight and credit you desire of the testimony of any witness you will 
take into consideration the tenor of the witnesses, the opportunity the witness 
has to know the things he is speaking about, his interest or lack of interest. 
In weighing the evidence of any witness, whether it is a witness for the Govern- 
ment or for the defendants, you will take into consideration the interest or lack 
of interest that witness may have had, bearing in mind, of course, that the 
defendant himself in this case is an interested witness—I am sorry, ignore that. 
I thought the defendant had taken the stand in his own behalf.
"You will determine where the truth lies and determine who told-the truth 
and the extent and the weight to be given to the testimony. In other words, 
in determining the credibility of any witness you will, as reasonable mens apply 
the same test you would in determining the truthfulness of a person you might 
meet in the ordinary course of affairs in your own life.
"I-leave the case to you, gentlemen, and ask the bailiff be sworn."
ME; T-CTNNELL: "May I ask that an exception be noted for the defendants?"
LEAHY, J.: "It is so noted."
The jury returned a verdict of guilty against the corporation and a verdict of 
not guilty with respect to Homer H. Pepper, as directed by the court. The jury 
reported that it was unable to reach a verdict with regard to Samuel H. San 
and on November 23, 1943, a nolle prosequi was entered by the United States 
attorney. 
V