7808. Alleged Adulteration of strained peaches.   U. S. v. Gerber Products Go.   Plea 
of  not  gruilty.    Tried  to  the  court and  jury.    Verdict  of  not guilty.
(F. D. C. No. 8830.    Sample Nos. 7957-F, 14923-F.)
behalf of the defendant, the case came for trial before a jury. The taking 
of the testimony was concluded on November 20,1944, on which date the court 
charged the jury as follows:
RAYMOND, District Judge: "Members of the Jury, the information, which 
is the formal complaint upon which the respondent is on trial in this case, 
contains two counts. This means that the respondent, the Gerber Products 
Company, is here on trial before you upon two separate and distinct charges, 
and, as I shall later instruct you, it will be within your province, as you may 
view the evidence, to find the respondent guilty upon both counts of the in- 
formation, or not guilty upon both counts of the information, or guilty upon 
one count and not guilty upon the other.
"The information is based upon Sec. 331 (a) and Sec. 342 of Title XXI of 
the United States Code. Sec. 331 (a) prohibits the introduction or delivery 
for introduction into interstate commerce of any food that is adulterated. 
Sec. 342 provides that food shall be deemed to be adulterated if it consists in 
whole or in part of any filthy, putrid or decomposed substance, or if it is 
otherwise unfit for food. This section, enacted in the interests of the public 
health, clearly prohibits shipment in interstate commerce of any food which 
contains filthy, putrid or decomposed matter.
"The information filed in this case charges in Count 1 substantially as fol- 
lows : That the Gerber Products Company, a corporation, of Fremont, Michigan, 
did on or about January 2nd, 1943, in violation of the Federal Food, Drug 
and Cosmetic Act, unlawfully introduce and deliver for introduction into inter- 
state commerce from Fremont, Michigan, to St. Paul, Minnesota, consigned 
to Gerber Products Company, a certain consignment, to-wit, a number of 
cans, each can containing a food within the meaning of the Federal Food, Drug 
and Cosmetic Act; and that said food when introduced and delivered for 
introduction into interstate commerce was then and there adulterated within 
the meaning of the Act of Congress, in that it consisted in whole or in part 
of a filthy and decomposed substance, by reason of the presence in said food of 
moldy peach pulp, worm fragments and insect fragments.
"Count 2 charges that this same respondent did on or about the 12th day 
of September, in the year 1942, in violation of this same act, unlawfully intro- 
duce and deliver for introduction into interstate commerce, from Fremont, Mich- 
igan, to Los Angeles, California, consigned to Gerber Products Company, a cer- 
tain consignment, to-wit, a number of cans, each can containing a food, and that 
said food when introduced and delivered for introduction into interstate com- 
merce was then and there adulterated within the meaning of the Act of Con- 
gress, in that it consisted in whole or in part of a filthy or decomposed sub- 
stance, by reason of the presence in said food of moldy peach pulp, worm frag- 
ments and insect fragments. Those are the two charges upon which this 
respondent is charged with guilt.
"Now the law presumes this respondent to be innocent of the offenses charged 
against it in the information, and throws around it the protection of that 
presumption; and the burden rests upon the government to establish by evi- 
dence and beyond a reasonable doubt each and every essential element of the 
offenses charged, and to negative each and every reasonable hypothesis of 
respondent's innocence. This burden remains upon the government throughout 
the case, and there is no burden resting upon the respondent to establish its 
innocence. It will be your duty therefore, as jurors, to commence your 
deliberations with the presumption of its innocence uppermost in your minds, 
and to continue your deliberations with that presumption uppermost in your 
minds until you and each of you has become convinced of the respondent's 
guilt by the evidence in the case, and beyond a reasonable doubt.
"By a reasonable doubt is meant exactly what the term implies, namely, 
a doubt for which there is a reason. The reasonable doubt which will prevent 
a juror from voting for conviction is and it must be a real and a substantial 
doubt, as distinguished from a merely possible or imaginary one; it must 
be a fair and an honest doubt, as distinguished from a merely captious or 
capricious one. It must be a doubt which grows out of the evidence which 
has been offered and received in the case, and one that is based upon reason 
and common sense, and not a doubt which grows out of or is based upon bias, 
or prejudice, or sympathy.
"If any juror has such a reasonable doubt as to the guilt of the respondent, 
you will have no right to vote for conviction. On the other hand, no juror 
has the right arbitrarily and without reason to say that he has a doubt, and 
thereupon refuse to convict. If you have such a reasonable doubt as to the 
guilt of respondent, it will be your duty to acquit it. On the other hand, if 
you have no such reasonable doubt, it will be equally your duty to convict the 
respondent.
"Now, during the course of this charge I shall state to you in substance 
and in a general way the principal claims of the government and of the 
respondent. I do not intend to state all of their claims, but only the sub- 
stance thereof, so that you may know generally what the matters are that 
are principally in dispute. It will be for you to remember the claims and all 
of them, from the testimony and from the statements and arguments of 
counsel, and you will understand that in stating them, the Court does not 
intend to state them as the Court's own views of what the testimony shows, 
because that is a matter for you, the jury, exclusively to determine. You 
are the sole judges of the credibility of the witnesses, and of the weight which 
should be given to the testimony upon any point in issue, and it is for you 
and you alone to determine finally what the facts in this case are, entirely 
uncontrolled by any comment which the Court may make, and to apply to 
those facts the law as the Court will give it to you in these instructions.
"There are one or two issues that have been eliminated from the case by 
agreement and stipulations of counsel. It has been agreed between the gov- 
ernment and the respondent that the contents of the shipments to St. Paul 
and to Los Angeles are properly classed as food within the meaning of the 
statute, and that the shipments were made by the respondent from Fremont, 
Michigan to those cities as alleged in the information. These goods were, 
therefore, introduced into interstate commerce by the respondent.
"The principal question for your consideration and determination is whether 
or not the shipments of strained peaches which were made from Fremont to 
St. Paul and to Los Angeles on January 2nd, 1943 and on September 12th, 
1942 respectively, contained strained peaches which were adulterated within 
the meaning of the statute. Now I shall not attempt to define the word 
'adulterated' to you, for the reason that the definition is contained within the 
Act of Congress in the following language: 'Food shall be deemed to be 
adulterated if it consists in whole or in part of any filthy, putrid or decomposed 
substance, or if it is otherwise unfit for food.'   The language is clear.
"You are instructed that the words 'filthy, putrid and decomposed' as used 
in the Act of Congress are to be construed and applied by you to the evidence 
in this case in their usual and ordinary meanings. They are not confined to 
any scientific or medical definitions. You are instructed that the element of 
criminal intent which is present in many cases is in no way involved in this 
case. Even the unintentional introduction of adulterated foods into interstate 
commerce is forbidden by this statute which I have read to you.
"You are instructed that to warrant a verdict of guilty the government must 
prove beyond a reasonable doubt that the strained peaches in these shipments 
contained filthy, putrid or decomposed substances in substantial amounts. 
The respondent urges that it is impossible in practice in the production and 
canning of strained peaches to entirely eliminate all such contamination at 
all times. The government claims, however, that these objectionable elements 
were present in the shipments here involved in such substantial quantities that 
it was entirely within the power of the respondent by the exercise of reasonable 
care to have eliminated these foreign substances entirely, and that respondent 
does, in fact, when it exercises proper care, accomplish that result.
"You are instructed, however, that it was not the intention of Congress to 
include as a criminal offense the presence of filthy, putrid or decomposed matter 
in such infinitesimal and inconsequential quantities as even the highest degree
of care could not eliminate. You are instructed, however, that the presence 
of worm heads, worm legs, portions of worm bodies, fragments, fly eggs, mites 
and rotted peach tissue with mold in such a substantial quantity that such 
contamination should have been discovered and eliminated would constitute 
adulteration within the definition of the statute.
"If you do find beyond a reasonable doubt that the food in question was 
filthy or putrid, or that it contained decomposed substances within the usual 
and ordinary meaning of those words, you are instructed that- it is not essential 
to a verdict of guilty that you shall also find that the contents of the cans 
were poisonous or were deleterious to health or were otherwise unfit for food. 
It is for you to determine from the evidence in the case what the facts are 
with reference to the condition of the food in question at the time it was 
introduced into interstate commerce, and having determined those facts to 
reach your conclusion as to whether or not the food was adulterated within 
the meaning of that word as defined in the statute.
"Of course, if you believe from the evidence that it was practically impossible 
in actual practice to free the strained peaches entirely and at all times from 
the presence of rotten peach tissue, mold, worm heads, worm legs, portions of 
worm bodies, fragments, fly eggs and mites, and that such contamination was 
present in the shipments here under consideration in such infinitesimal and 
microscopic quantities that you do not regard it as filthy, putrid or decomposed 
in the usual, natural and practical sense of those words, then your verdict 
should be for the respondent of 'Not guilty.' On the other hand, if you find 
beyond a reasonable doubt, as I have defined that term, that the strained 
peaches here involved contained substantial amounts of these foreign sub- 
stances, then your verdict should be 'guilty as charged.'
"You are the sole judges of the credibility of the witnesses. ., It is for you 
and you alone to determine who has told the truth and where the truth lies. 
You will give to the testimony of each and every witness such weight and 
credence as you believe it is entitled to, and in weighing and measuring the 
testimony of each witness you have the right to take into consideration his 
appearance upon the witness stand, the reasonableness or unreasonableness 
of the story which he has told. You have a right to take into consideration 
any motive which he may have had for testifying falsely. You have a right to 
take into consideration any interest which he may have in this prosecution 
or its outcome. You have no right for trivial reasons to find that any witness 
has testified falsely, and it will be your duty if possible to harmonize and 
reconcile the testimony of the witnesses in this case upon the theory and basis 
that each and every witness has attempted to tell the truth. If you are unable 
to do so, it will then be your duty to determine the testimony which is true 
and that which is untrue, and when you have made that determination, you 
will discard and disregard the testimony which you find to be untrue and reach 
a verdict based upon all the evidence in the case which under all the circum- 
stances you believe to be true.
"Now this case is important. All criminal cases, of course, are important. 
It is important that no innocent respondent should be convicted. It is impor- 
tant that due process of law should be at all times observed and that no one 
shall be convicted by a jury until that jury, after a fair, candid and impartial 
scrutiny of the testimony has reached the conclusion therefrom under the law 
as I have given it to you that the respondent is guilty beyond a reasonable 
doubt. Upon having reached that conclusion, however, if you do so, then the 
interest of the public intervenes, and it is of the utmost importance that the 
law should be vindicated, and that offenders against the majesty of the law 
should be made to answer for their crimes. In the performance of that duty 
there is no place for prejudice, passion or sympathy. You should go forward 
to your duty, so that you will see nothing except the law, the evidence, and 
your duty, and you should enter upon the consideration of this case with 
those facts uppermost in your minds.
"As I have indicated, you may convict the respondent upon both counts of 
the information. You may convict it upon one count and acquit upon the 
other; or you may acquit it upon both counts. If you find from all the evidence 
and beyond a reasonable doubt, as I have defined it, that the food was adul- 
terated within the definition contained in the statute at the time each of the 
shipments were introduced into interstate commerce, then your verdict should 
be 'Guilty as charged.' If you find that it was not so adulterated, then your 
verdict should be 'We find the respondent not guilty.'    If you find that there
was adulteration as to one of the shipments and not as to the other, you will 
indicate by your verdict the count upon which you acquit and the count upon 
which you convict, bearing in mind that the first count sets forth the shipment 
of January 2nd, 1943, from Fremont to St. Paul, and that the second count 
sets forth the shipment from Fremont to Los Angeles, on September 12th, 1942." 
On November 20, 1944, the jury, after due deliberation, returned a verdict of 
not guilty.