7142. Adulteration of prune juice concentrate.    U. S. v. Anthony Joseph (Raisin
Syrup Co.). Plea of not guilty. Trial by jury. Verdict of guilty. 
Fine, $250 on count 1; imposition of sentence suspended on count 2 for 
a period of 1 year, during which time the defendant was to be on proba- 
tion. Affirmed on appeal. Application for writ of certiorari denied by 
J. S. Supreme Court. (F. D. C. No. 9646.   Sample Nos. 11063-F, 44580-F.)
INFORMATION FILED: On June 21, 1943, in the Southern District of California, 
against Anthony Joseph, trading as the Raisin Syrup Co., Fresno, Calif.
ALLEGED SHIPMENT: On or about December 30, 1942, and January 25, 1943, 
from the State of California into the State of Connecticut.
LABEL IN PART: "Raisin Syrup Co. Smil-O-Brand * * * Stoddard Bros. 
Inc.    *    *    *   Hartford, Conn."
VIOLATIONS CHARGED: Adulteration, Section 402 (&)^(3), the product consisted 
in whole or in part of a filthy substance by reason of the presence of insects, 
insect fragments and excreta, rodent hair fragments, hairs resembling rodent 
hairs, and hair fragments resembling rodent and cat hairs; and, Section 402 
(a) (4), it had been prepared under insanitary conditions whereby it might 
have become contaminated with filth.
"Appellant was sentenced to a fine of $250 on the first count and, on the 
second count imposition of sentence was suspended for a year during which 
period he was placed on probation. The appellant entered into a stipulation 
of facts with the government in which, among other things, it was stipulated 
that the shipments alleged in the information were food. On the eve of the 
trial the appellant changed attorneys and on the day of the trial, November 
10, 1943, without previous notice to the government appellant made a motion 
that he be relieved from the stipulation on the ground that the product shipped 
was not to be used as food without further processing. The motion was 
denied and no exception taken.    The denial of this motion is assigned as error.
"The same question was raised on a motion for new trial. A further ground 
for the motion for new trial was that a government witness had been seen 
conversing with a juror.
"In the absence of exceptions taken in the trial court no point is raised for 
decision on appeal. Decision on motion for new trial is not reviewable in 
any event. The appellant argues that there was no evidence on the second 
count except the stipulation and therefore it cannot be considered as sufficient 
evidence of the crime without further proof of the corpus delicti. The proper 
way to raise this question in the lower court would be by motion for a directed 
verdict. None was made and consequently the question is not before us. 
Moreover, the stipulation covered all the facts necessary to show the com- 
mission of an offense and was sufficient without additional evidence.
"Affirmed."
DENMAN, Circuit Judge (concurring in the result, but dissenting from de- 
cision that in a criminal appeal, in the absence of a motion for a directed 
verdict, no question can be before the appellate court): "I dissent from the 
refusal on technical grounds to consider the cogently presented contention of 
appellant that the stipulation of the otherwise unproved fact, namely, that 
the shipment was a food, a fact necessary for conviction on both counts, was 
in the nature of a confession or admission and required further proof of the 
corpus delicti.  The contention is an important one, seemingly of novel" import.
"The statement that 'Moreover, the stipulation covered all the facts neces- 
sary to show the commission of an offense and was sufficient without additional 
evidence,' in no way warrants the refusal to consider appellant's contention, 
for, if it be correct, the stipulation is nonetheless a confession requiring cor- 
roboration because it contains all the elements of the crime.
"Where, as here, a motion is made and denied though no exception is taken, 
the majority opinion's statement that 'In the absence of exceptions taken in 
the trial court no point is raised for decision on appeal' is a return to the 
technical denial of appellate justice of Sherwin v. United States, 9 Cir., 112 F. 
2d 503, 504, despite the reversal of that case in 312 U. S. 654, 61 S. Ct. 618, 85 
L Ed. 1104. There the Supreme Court instructed us to consider the contention 
of the insufficiency of the evidence to sustain the verdict, though there was no 
exception to the denial of the motion to direct a verdict or to dismiss—an 
absurd order for the Supreme Court to make if, in the absence of an exception, 
the bill showed no point raised for decision on appeal.
"Likewise with regard to the failure of the bill of exceptions to show that 
appellant sought a directed verdict. I am ignoring the fact that the minutes 
of the trial court, appearing in the transcript, show that such a motion was 
made and that an exception was, taken.^ It is not the law of this circuit that 
the question of the sufficiency of the evidence to sustain the verdict cannot be 
before us in the absence of such a motion. The repeated holdings of this court 
are that it will consider the merits of a contention that there is no evidence to
support the conviction, even though there be no motion for a directed verdict 
on that ground.
"In Bailey v. United States,-9 Cir., 13 F. 2d 325, 327, Judge Rudkin's opinion 
established the law for this circuit to be:
We are, of course, aware that there was no request for an instructed verdict at the 
close of the testimony, as suggested by counsel; but if there is no competent testimony 
to support the verdict of guilty, and more especially if it appears affirmatively that no 
crime has in fact been committed, the right and duty of this court to order a reversal 
is not open to question.
The judgment of the court below is therefore ^reversed, and the cause is remanded for 
a new trial.
"In that case the evidence was reviewed and the lower court was reversed.
"The Bailey case was followed in Marco v. United States, 9 Cir.,/26 F. 2d 
315, 316, where, without a motion for a directed verdict, the evidence was 
reviewed and the conviction sustained, the court holding:
The sufficiency of the testimony to supportive verdict was not raised at the con- 
clusion of all the testimony in the court below, and for that reason the question is not 
properly before us for review. Under such circumstances courts will only look into the 
record far enough to see that there has been no miscarriage of justice, or that there 
is some testimony tending to support the verdict.
"The court in the first case was constituted of Judges Gilbert, Hunt and 
Rudkin; in the second case of Judges Gilbert, Rudkin and Dietrich.1
"However, in this appeal the contention the court refuses to consider does 
not require a review of the evidence, for the appellee's brief admits as to both 
counts on which appellant was held guilty that in the absence of the stipulation 
there was no proof of the necessary fact that the shipment in interstate com- 
merce was a food. Concerning the second count, the necessary proof of con- 
tamination of the article shipped in interstate commerce does not appear other 
than in the stipulation. Appellant therefore is refused the consideration of 
what is purely a question of law which, if he be correct, has been decided below 
in a manner to constitute what this court has repeatedly described as 'a mis- 
carriage of justice,' which it is our duty to consider.
"The position of appellant, in effect, is as follows: If appellant, after infor- 
mation filed but before trial, had met the United States Attorney and given 
him a signed confession that his interstate shipments were foods and were con- 
taminated and later at the trial the United States Attorney had offered the 
confession in evidence, no crime was proved and no conviction could be had 
unless independent proof was made of the food nature of the shipment and its 
contamination. Gordnier v. United States, 9 Cir., 261 F. 910, 911; Ryan v. 
United States, 8 Cir., 99 F. 2d 864; Gulotta v. United States, 8 Cir., 113 F. 2d 
683; Anderson v. United States, 6 Cir., 124 F. 2d 58. Hence, appellant's con- 
tention continues, the written confession of his agent, his counsel, contained in 
the stipulation, can have no higher value than the written confession of the 
agent's principal, the appellant.
"Appellee nowhere meets this contention with any case in which the question 
of the necessity of proof of the corpus delicti is raised. Appellee has cited no 
criminal case and our search has revealed none in which the effect of stipulations 
made before trial has been considered.   It seems a question of novel import.
"In my opinion, such a stipulation, though in effect it be aNconfession, is not 
an extra-judicial act. The attorney for appellant's litigation is not a mere 
agent when he enters into a stipulation with the government's attorney. The 
attorneys of both parties are officers of the court and, since the making of the 
stipulation in existing litigation is within the functions of the appellant's 
attorney's office, the confession appearing in the stipulation is an action for 
the court itself and in that sense a judicial act. Though, before trial, its effect 
is no different in establishing the fact that such a stipulation made in the 
course of the trial, or, if the defendant took the stand, his statement there that 
the shipment was a food.
"The judgment should have been affirmed on the grounds here stated."
On September 20, 1944, the defendant filed a petition for a writ of certiorari 
with the U. S. Supreme Court and on November 20, 1944, such petition was 
denied.
1 Since the instant case was decided, the principle of the Bailey and Marco cases has 
been reaffirmed in Giles v. United States, 9 Cir., 144 F. 2d 860. The court, constituted of 
Fudges Denman, Stephens and Healy, considered as assigned error, though no objection 
was made or exception taken, "far enough to see that there has been no miscarriage of 
justice."