8643. Adulteration of sesame seed. U. S. v. Richard J. Spitz. Tried to a. jury. Verdict of guilty. Fine, $1,000. (F. D. C. No. 15491. Sample Nos. 50653-F, ¦¦ 50654-F.) INFORMATION FILED: May 17, 1945,. Southern District of New York, against Richard J. Spitz, a partnership, New York, N. Y. v 1; ALLEGED SHIPMENT: On or about January 10 and 28, 1944, from the State of New York into the State of Pennsylvania. in whole or in part of a filthy substance by reason of the presence of larvae, adult insects, head capsules, insect fragments, worm webbing and excreta, and insect and rodent pellets. DISPOSITION : October 9,1945. A plea of not guilty having been entered by the defendant, th?e ease was tried before a jury. At the conclusion of the testimony and arguments of counsel, the court delivered the following charge to the jury: < LEAMY, District Judffe: "Mr. Foreman and Ladies and Gentlemen of the Jury: ' This is an action brought by the United States of America against Richard J. Spitz, a partnership, on an information filed against the partnership in this court. The partnership may be hereinafter referred to either as 'the defend- ant' or as 'he' or as 'it'. , "The fact that the defendant is here under information and on trial is not to be taken against it. The information which has been filed and on which the partnership is being prosecuted is no evidence whatsoever of the guilt of the defendant. The information is simply an accusation which charges the defendant with an offense, and no member of the jury should be influenced in the least degree by the fact that the information has been filed. "The information, as you know, is in two counts. It charges, in substance, in the first count, that on or about the 10th day of January, 1944, that Richard J. Spitz, a partnership, of the City of New York, did introduce and deliver for introduction into interstate commerce for delivery to Philadelphia, Pennsyl- vania, a number of bags containing a food within the meaning of the Federal Food, Drug and Cosmetic Act; that the said food, when it was-introduced in interstate commerce was contaminated and adulterated in that it consisted in whole or in part of a filthy substance, to-wit, larvae, adult insects, head cap- sules, insect fragments,- worm webbing and excreta. "The second count of the information Charges, in substance, that on or about the 28th day of January, 1944, that the said Richard J. Spitz, a partnership, did ship in interstate commerce from New York to Philadelphia a number of bags containing food within the meaning of the Federal Food, Drug, and Cos- metic Act; in that the said food when shipped in interstate commerce was then and there adulterated, in that it consisted in whole or in part of a filthy substance, "to-wit, larvste, adult insects', insect fragments, .insect pellets, and other matters. "In brief, the information-is in two counts and charges the interstate ship- ment of a number of bags of Tiood, namely, sesame seed, which seed was adul- terated in that it contained various filthy substances. [Here the Court gave the usual instructions to the jury that the burden of proof rests upon the Government and that the defendant is presumed to be innocent until proved guilty beyond a reasonable doubt.] "The statutes involved and which the Government claims have been violated are Section 331 (a) of Title 21, which prohibits the introduction or delivery for introduction into interstate commerce of any food, drug, device, or cosmetic that is adulterated or misbranded, and Section 342 (a) of Title 21 which pro- vides 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. ' v "The statute also provides that the term 'interstate commerce' means com- merce between any State or territory; the term 'person' includes an individual, a partnership, or " an association, and that the term 'food' means articles used for food or drink, or articles used for components of any such article." "It is the contention of the Government that on January 10, 1944, the Spitz firm shipped from its New York place of business to Frank Burns Inc., in Phil- adelphia, 20 200-pound bags of sesame seed; and that on January 28, 1944, there was another shipment of 7 bags of sesame seed to Philadelphia, and that both shipments were adulterated in that the seed contained various filthy substances. "It is the contention of the defendant that the filthy substances which were found in the seed on the 17th of February, 1944, were not in the seed at the time the seed was shipped, and that the infestation occurred after the shipment of the seed. "You are instructed that sesame seed is food within the meaning of the Food and Drug Act. You are further instructed that this shipment was in interstate commerce. "There does not seem to be any dispute over the Tac,t -that filth was found , in the seed, on the 17th ,of February at the Burns plant in Philadelphia. So that the only question fox you to determine is, was the filthy substance in the seed at the time that it was shipped "The, contention of the Government is that it was in the seed. Although I ordinarily do not refer to facts in the case in a charge to the jury, I (call , your attention to some of the testimony in the case for the purpose of directing your, attention te the question at issue. , "Evidence has been introduced by the Government through the testimony - of .one " or more experts that the filthy substance, the larvae which you and I ,,probably would call worms and insects, both dead and alive, if they were there, cOjUld not hav,e-reached the growth that other did during the period of shipment and the date of discovery. In other-words, that the filth could not have reached the .development rea ,w you find that the facts as alleged by the Government have not been proved beyond a reasonable doubt, then your verdict will be that the defendant is not guilty. If, however, you find that the facts as alleged by the Government have been proved beyond a reasonable doubt, then your verdict will be that the defendant is guilty. "It is, of course, your duty to reconcile conflicting testimony t if you can, on the theory .that all of the witnesses have sworn to the truth, but if you cannot do that, then you are to determine from all the evidence before you, which of the witnesses is entitled to the greater credit. "It is proper that I should add that your verdict in this case should not be controlled by contradictions on minor points, provided the evidence taken as a whole, after making all due allowances for any such contradiction, leads you to a fixed conclusion of the guilt of the defendant. If the evidence so taken does not satisfy you beyond a reasonable doubt, as already defined, that the defendant is guilty, held should be acquitted. If, however, the evidence does so satisfy you beyond a reasonable doubt, your verdict should be that he is guilty. ' ' s * "In this action I charge you that as to the complaint of the defendant as to the absence of the witness Miller, you are instructed that the Government is not obliged to furnish witnesses for the' defendant. 'The defendant"had just as much right to call the witness Miller as did the Government, and the processes of this court to obtain Miller's presence was as open to the defendant as it was to the Government. "Once again, briefly the question for you to decide on count one is, was the filth in the bags or in any of the bags when they were shipped on January 10th- "As to count two, Vas the filth in the bags or any of them at the time they were shipped on January 28th? That is the only question for you to determine. "As I "have already said, you are the sole judges of the credibility of the witnesses, the weight Jto be given to their testimony, and the weight and effect that evidence, whether oral or documentary.*','"' ' "While it is the exclusive function of the Court to present to you the prin- ciples of law applicable to the case, it is your exclusive function, to pass upon the facts and the evidence and reach a* conclusion subject to the principles of law as presented to you by the Court.' The case infer you to decide upon the evidence and the evidence alone.' "You must not be influenced by assumption, conjecture, sympathy or by inferences not warranted by facts proved to your satisfaction. "Your oath sums up your duty, and that is without fear or favor of any man that you will well and truly try and trite deliverance" make be tween the de- fendant and the United States of America, according to the evidence given to you if court and the law'of the United States. " "Take the case and consider it in view of its importance and the gravity of the charges made in the information. It is important to the public. It is also important to the defendant. "You will not concern yourselves about the sentence for* this offense, if there is one, because that is a matter solely for the Court and not for your con- sideration. "Your verdict will be oral and will be either guilty or not guilty on each of the counts. It will be announced by your foreman when called upon to report for you. "There have been a great many exhibits introduced in the case. You are entitled to have any of these exhibits or all of them in the juryroom during your deliberations, if you will make your wants known to the officer in charge. "Are there exceptions, Mr. Rosoff?" ' MB. ROSOFF : "I have no exceptions, if the Court please, but I respectfully re- quest your Honor to charge that that side which calls a witness vouches for his credibility, and I ask your Honor to so charge with reference to the wit- ness Miller." THE COURT : "I do charge that whichever side calls a witness vouches for his credibility, but the Government did not call the witness Miller as a witness." MB. ROSOFF : "I respectfully except to the charge as given. I respectfully ask your Honor to charge that the uncontradicted evidence is that the wit- ness Miller was in the court on Monday and Tuesday." THE COTJET : "No, I will charge no such thing." MB. ROSOFF : "I respectfully except." THE COURT: "YOU may have an exception." MB. ROSOFF: "I respectfully ask your Honor to charge that if the evidence may be construed equally, consistent with the guilt OK innocence of the defend- ant, it must be construed to find the defendant innocent." THE COURT: "That is true. That is the law. I so charge." MRS. SHIENTAG : "I would respectfully request the Court to charge that it is not necessary for the jury to find that the adulteration and that the filth would have constituted a danger to health, contained in Government's request number three." THE COURT: "Yes, I will so charge. The jury are instructed that if an article be unlawfully adulterated in violation of the Food and Drug Act, it is not necessary that it must be dangerous to health. Your concern should be simply to find as to the question of whether the seed was adulterated; I so charge you, and that the elements found in the seed on the 17th of February was an adulteration within the meaning of the Act," MB. ROSOFF : "I did omit to request one more charge, and that is that there is eliminated from this case on the defendant's motion that portion of each eount which purports to allege that the food was adulterated by reason of _ insanitary conditions existing in the'premises. I mean to give it in the words of the information, if the Court please, the second part of each count." THE COURT : "Yes. The jury is instructed that the last part of each count in the information has been dismissed." ME. ROSOFF \ "May I respectfully request your Honor to read, or perhaps I should read, that part which is to be excluded in the deliberations of the jury." , THE COURT : "Yes, I will read it. It is the last part of the first count and it is this: That said food, when introduced and delivered for introduction into inter- state commerce, was,further adulterated in that it had been held under insani- tary conditions whereby it may havebecome contaminated with filth, against ' the peace and dignity of the United States/ That has been dismissed. "The last part of the second count reads as follows: 'That said food, when introduced and delivered for introduction into interstate commerce as afore- i said, was further adulterated in that it had been held,under insanitary condi- tions whereby it may have become contaminated with filth; against the peace of the United States and their dignity.' That also has been dismissed." ME. ROSOFF : "Thank you, sir." MES. SHIENTAG: "May I make one further request with reference to count two of the information? That count charges that the adulteration consisted of the matters set forth in the Court's charge, and in addition another item, rodent pellets." THE COURT : "Yes, I read that to the jury when I gave them the substance of the counts. "You may take the case, ladies and gentlemen. You will be in charge of the officer." The jury then retired and, after due deliberation, returned a verdict of guilty. The court imposed a fine of $500 on each of the 2 counts, a total fine of $1,000.