12535. Adulteration of canned salmon. U. S. v. 2,995 Cases of Canned Sal- 
mon. Tried to the court and jury. Verdict for the Government. 
Decree of condemnation and forfeiture. Product released under 
bond to toe sorted. (F. & D. No. 14945. I. S. No. 10612-t. S. No. 
W-950.)
On May 17, 1921, the United States attorney for the Western District of 
Washington, acting upon a report by the Secretary of Agriculture, filed in the 
District Court of the United States for said district a libel praying the seizure 
and condemnation of 2,995 cases of canned salmon remaining in the original 
unbroken packages at Seattle, Wash., alleging that the article had been shipped 
by the Alaska Herring and Sardine Co. from Port Walter, Alaska, to Anacortes, 
Wash., arriving between the dates of June 28 and November 7, 1919, and had 
been reshipped to Seattle, August 3, 1920, and transported from the Territory 
of Alaska into the State of Washington, and charging adulteration in violation 
of the food and drugs act. The article was labeled in part: " Hypatia Brand 
Pink Salmon." 

Adulteration of the article was alleged in the libel for the reason that it 
consisted wholly or in part of a filthy, decomposed, and putrid animal substance.
On March 13, 1924, A. O. Anderson & Co., Seattle, Wash., having appeared 
as claimant for the property, the case came on for trial before the court and a 
jury. After the submission of evidence and arguments by counsel the court 
delivered the following charge to the jury (Cushman, D. J.) :
" Gentlemen of the jury, you have heard the evidence in the case, and the 
arguments. It is the duty of the Court now to instruct you regarding the 
law. The task devolving upon the Court has been much lightened by the 
thorough and exhaustive manner in which the case has been tried and has 
been argued. You will take out the pleadings in the case with you, when 
you go to your jury room. These pleadings consist of the libel filed by the 
Un'ted States attorney, and the answer filed by the claimant. You under- 
stand this suit is against this particular parcel of salmon. The client of 
Mr. McCord and Mr. Shackelford interposes a claim to it, and, claiming to 
be the owner, is allowed to defend the salmon; but what you are trying in 
this case 's this parcel of salmon.
"The libel filed by the United States attorney alleges that this salmon was 
shipped in interstate commerce from Alaska to 'the State of Washington; 
alleges that it is adulterated; alleges that it was adulterated at the time that 
it was shipped in interstate commerce; and prays its condemnation.
"The answer of the claimant admits that it was shipped from Alaska to 
the State of Washington; denies that it was adulterated.
?" Your verdict in this case will not be ' guilty' unless a fair preponderance 
of the evidence has shown that it was adulterated within the meaning of 
this law.
"'Adulteration' or 'adulterated' is about the only word that occurs to me 
in this law that requires a definition at the hands of the Court. The other 
words used in the statute are words of ordinary meaning and are used in 
their ordinary sense, but this statute defines an adulterated article of food 
about as follows, that is, an article of food is adulterated when it consists, 
in whole or in part, of filthy, decomposed, or putrid animal substance, making 
it unfit for human food; and before your verdict can be ' guilty' in this case, 
or before it should be 'guilty' in this case, you will have to find that there 
was a fair preponderance of the evidence showing that it was either filthy, 
decomposed, or putrid to an extent that rendered it unfit for human food.
" It may be that decomposition begins as soon as life ends, but a food 
product, this canned fish product, is not decomposed within the meaning of 
this law at that early stage. ' Decomposed' in this law does not mean the 
beginning of decomposition; it means the state of decomposition that renders 
the article of food unfit for human food. ' Decomposed' within this law 
does not mean that it shall have reached such an advanced state of decom- 
position that it is resolved to its elements, that it has ceased really to be 
flesh. Regard'ng this expression 'unfit for food,' the Court does not under- 
take to enumerate all of the things that you might take into account in 
determining whether an article is fit or unfit for food.
" The evidence in this case has taken a wide range. You are not to under- 
stand from that fact that you are trying either the packers or the Bureau 
of Chemistry; you are trying this particular parcel of fish to determine whether
it is filthy, decomposed, or putrid to an extent rendering it unfit for food. 
This evidence regarding the manner in which the fish was packed, the con- 
ditions under which it was packed, and much of the other testimony in the 
case was to enable you to determine whether it was reasonably probable that 
it was a fit food product if it was put up in the manner described. In other 
parts of the testimony, witnesses have been examined and cross-examined 
about their exper ence and what they had done and what they had not done. 
Now, much of that testimony went into the case so that you might determine 
the value of their opinions from their experience and their interest, if any, 
in the case.
" Now, coming back again to the question of the fitness or unfitness of this 
fish for food: In order to be unfit for food, within the meaning of this law, 
it would not be sufficient if you found some one person with an appetite so 
pampered and cloyed with delicacies as to become so fastidious that he would 
turn up his nose at a can of salmon; that would not be sufficient to condemn 
it. Neither would it be sufficient to sanction and warrant its being carried 
in interstate commerce, if you found somebody so hungry that he would eat it. 
' Unfit for food' here in this statute means reasonably unfit for food.
" The evidence in the case regarding the fact, if it be a fact, that salmon 
may be stale, tainted, or decomposed without being an injurious food, you 
will understand that the fact that it is not injurious does not make it fit 
for food, if it is so decomposed as to be unfit for food. The fact regarding 
whether it would injure the person eating it or not was admitted in the 
case, as you can understand that if an article of food in a certain condition 
was deadly, as you have heard of mushrooms-I do not undertake to say 
that they are deadly-but if an article of food was deadly and you could not 
determine, before eating it, whether it was deadly or not, you would under- 
stand that such an article of food would be unfit for human food on a certain 
percentage of the impurity or conditions that rendered it deadly, when another 
article of food that was perfectly harmless and could be easily detected would 
not be unfit for human food, measured by those standards alone. It is a 
matter of common knowledge that in determining whether an article is fit for 
food or appropriate for food, that you take into account whether it is harm- 
ful or not, 3'ou take into account whether it has food value, whether it satis- 
fies your hunger, whether 4t builds up the wasted tissues that are exhausted 
because of a lack of food, and to a certain extent you take into account 
whether it pleases the taste. Now, what value you are going to place upon 
these different things that will be taken into account in measuring the fitness 
of this or any article of food, is for you to determine, not the Court.
" I believe I have instructed you that before you could find a verdict of 
'guilty,' that you must be able to find, from a fair preponderance of the evi- 
dence, that this salmon was either filthy, decomposed, or putrid to an extent 
rendering it unfit for human food. Now, where a parcel of food has been 
tested, where the tests that have been made do not extend to the entire parcel, 
it is nevertheless necessary that the preponderance of the evidence should 
have shown that the adulteration extends to the whole product sought to be 
condemned before your verdict would be ' guilty.' It might be that a small 
percentage of adulteration in a small percentage of samples taken from such 
a product would not amount to a fair preponderance of the evidence, where 
an adulteration of a large percentage of the product would establish that fact.
" The thing that is charged is that this was an adulterated article of food 
when it was shipped in interstate commerce. That is necessary. But there 
has been no particular contention made here, either under the evidence or 
the arguments, that the fish is in any different condition now, or at the time 
it was examined here in Seattle, than it was when it was shipped.
" You are in this case, as in every case where questions of fact are tried 
to the jury, the sole and exclusive judges of every question of fact in the 
case and the weight of the evidence and the credibility of the witnesses. In 
weighing the evidence and measuring the credit of the witnesses who have 
appeared before you and testified, the law does not undertake to point out all 
of the things that you may take into question in measuring such credit of 
such witnesses. You are authorized to consider any and everything that as 
men of experience you have found to be of value in measuring where the truth 
lies, from human testimony and human transactions. The law does say that 
you should observe and weigh the appearance and conduct and demeanor 
of the witnesses who have come before you and testified; whether from their 
manner of giving their testimony it created a belief in your minds that they
were doing their utmost to tell you the exact truth as they understood it or 
saw it; whether some of them may have been reluctant and evasive and kept 
trying to get' away from the question, creating the belief in your minds that 
they were trying to keep from telling you the straight of it, or whether other 
witnesses may have appeared to you to be willing, trying repeatedly to get 
something into the case that nobody had asked for-what the law calls a 
* swift' witness; also take into account the situation in which the witness is 
placed, as enabling the witness to know the exact facts, as one witness, by rea- 
son of his experience and by reason of his situation in regard to the transac- 
tions about which he is testifying, might be in a much better position to tell 
the exact truth than another one who was just as much inclined to tell 
you the truth as the first; also take into account the reasonableness and 
probability of the testimony of each witness, in view of the circumstances, 
whether it appears to be reasonable and probable or whether it appears un- 
reasonable and unlikely; take into account the interest that any witness may 
have been shown to have in the case, an interest either as shown by the man- 
ner in which the witness gave his testimony or as shown by the relation of the 
witness to the case and the matters therein involved.
" The Court has, in the course of the instructions, used the expression ' pre- 
ponderance of the evidence.' Preponderance of the evidence is the greater 
weight of the evidence. That evidence preponderates which so appeals to your 
experience and reason and intelligence as to create and induce a belief in your 
minds, and, if there is a dispute in the evidence, that evidence preponderates 
which is so strong in these particulars as to create and induce a belief in 
your minds, in spite of what is opposed to it in the way of evidence or assaults 
that have been made upon it in the way of argument.
" There was something said, I believe, in argument, regarding the care taken 
in putting up this'fish. ' For fear that you may not yet understand the rule of 
law on that matter: if this fish is decomposed to the extent that it is not rea- 
sonably fit for food and the fair preponderance of the evidence shows that fact, 
the verdict should be ' guilty,' no matter how it came about-its decomposi- 
tion. If it came about in spite of the care taken in putting it up, or if some 
malicious person brought it about, that does not make any difference. You 
are trying this article of food. If it is so decomposed as not to be reason- 
ably fit for food, the verdict should be ' guilty.' If a fair preponderance of 
the evidence has not shown that fact, your verdict should be 'not guilty.'
" Is there anything further, gentlemen? "
MB. MCOOKD : " We except to that portion of Your Honor's instructions as 
to the preponderance of the testimony. The burden of proof is on the Govern- 
ment to show, by a fair preponderance of the testimony, Your Honor stated, 
that the allegations of the libel were supported. This is an action in the 
nature of forfeiture of property, and I think the instruction should have been 
that the allegations of the libel must be established, not only by a fair pre- 
ponderance of the evidence, but that the evidence should be clear and con- 
vincing."
THE COUKT: "Exception allowed."
ME. MCCOED : " I also except to Your Honor's failure and refusal to give the 
first instruction requested by the claimant."
THE COURT: " Exception allowed."
MB. MCCOKD : " The claimant also excepts to Your Honor's refusal to give the 
second instruction requested."
THE COURT : " Exception allowed."
MB. MCCOKD : " The claimant excepts to Your Honor's refusal to give the 
third instruction requested by the claimant."
THE COURT : " Exception allowed."
ME. MCCOED : " The claimant excepts to Your Honor's refusal to give the 
fourth instruction requested by the claimant."
THE COURT : " Exception allowed."
MR. MCCORD : " The claimant excepts to the action of the Court in refusing 
to give the fifth instruction requested by the claimant."
THE COURT : " Exception allowed."
MB. MCCOED: "The claimant excepts to the refusal of the Court to give 
the sixth instruction requested by the claimant."
THE COURT : "Allowed."
MB. MCCOED: "The claimant excepts to the action of the Court in refusing 
to give the seventh instruction requested by the claimant."
THE COURT: "Allowed."
MB. MCOOBD : " The claimant excepts to the refusal of the Court to give the 
eighth instruction requested by the claimant."
THE COTJBT: "Exception allowed."
MK. MCCOBD : " The claimant excepts to the refusal of the Court to give the 
ninth instruction requested by the claimant."
THE COURT : " Exception allowed."
MB. MCCOBD : " The claimant excepts to the action of the Court in refusing 
to give to the jury the tenth instruction requested by the claimant."
THE COTJBT: "Exception allowed."
MB. MCCORD : " The claimant excepts to the action of the Court in refusing 
to give the eleventh instruction requested by the claimant."
THE COTJBT: "I will allow an exception.   I think I covered that."
ME. MCCORD : " The claimant excepts to the action of the Court in refusing 
to give the twelfth instruction requested."
THE COTJBT : " I think that has been covered. You are allowed an exception, 
however."
MB. MCCOBD : " The claimant excepts to the failure of the Court, in final in- 
structions of the Court, to give the thirteenth instruction requested by the 
claimant."
THE COTJBT : " I will give that instruction, since something has been said 
about it in the course of the trial.
"In your deliberations, you will not consider the question as to whether 
or not the salmon involved in this controversy can or can not be reconditioned. 
The reconditioning of the salmon is not within the issues in this case.
"Are there any exceptions?"
MB. HILL: "If the Court please, the Government excepts to the Court's re- 
fusal to give the libelant's first requested instruction."
THE COTJBT : " Exception allowed."
MB. HILL: "The libelant excepts to the Court's refusal to give the second 
requested instruction."
THE COTJBT: "Exception allowed."
MB. HILL: "The libelant excepts to Your Honor's refusal to give the libel- 
ant's third requested instruction."
THE COTJBT : " Exception allowed."
MB. HILL: "The libelant excepts to Your Honor's refusal to give the libel- 
ant's fourth requested instruction."
THE COTJBT : " Exception allowed."
MB. HILL: "The libelant excepts to Your Honor's refusal to give the libel- 
ant's fifth requested instruction."
THE COTJBT: "Exception allowed."
MB, HILL: "And the libelant excepts to Your Honor's refusal to give the 
libelant's sixth requested instruction."
THE COTJBT: "Exception allowed."
MB. HILL: "The libelant further excepts to that portion of Your Honor's 
instructions in which it is stated that the issue is whether or not this salmon 
consists, in whole or in part, of filthy, decomposed, or putrid animal substance^ 
and stating, in addition to that, ' unfit for food.'"
THE COTJBT : " ' Making it.' "
MB. HILL : " Making it unfit for food."
THE COTJBT : " Exception allowed.
" Gentlemen, in the progress of the case, the Court, as evidence came in, in- 
structed you regarding the purpose for which it was admitted. Many of those 
instructions I have not repeated to you in the charge I have just given you. 
It is your duty to bear in mind the instructions the Court gives you in the 
progress of the trial, as well as those that are given at the conclusion.
" The form of verdict as prepared reads: ' We, the jury in the above-entitled 
cause, find the respondent 2995 Cases Canned Salmon Labeled in Part "Hy- 
pathia Brand Pink Salmon," 
guilty as charged in the libel of infor- 
mation filed herein.' If you find this salmon guilty under the evidence and in- 
structions you will write in the blank the word ' is.' If you find the salmon not 
guilty, you will write the word ' not' in there and have your foreman sign it,
" Is a sealed verdict agreed to if the jury agree after five o'clock?"
MB. MCCOBD: "Yes."
MB. HILL : " That is satisfactory, Your Honor."
THE COTJBT : " You understand, gentlemen, the method of returning a sealed 
verdict.   If you agree before five o'clock, you will advise the bailiff of the fact
that you have agreed and come into court with your verdict. If you agree 
after five o'clock, you will complete your verdict, seal it up, leave it with your 
foreman, and report here with your verdict at ten o'clock tomorrow morning.
" You may now retire."
The jury then retired and after due deliberation returned a verdict for the 
Government.
On July 7, 1924, a decree of condemnation and forfeiture was entered, and 
it was ordered by the court that the product be released to the claimant upon 
payment of the costs of the proceedings and the execution of a bond in the sum 
of $3,000, in conformity with section 10 of the act, conditioned in part that the 
good portion be separated from the bad portion and the latter destroyed.
HOWARD M. GOBE, Secretary of Agriculture.