8920. Adulteration of apple chops.    U. S. v. 1,240 Sacks of Apple Chops.    Tried
to the court and jury. Verdict for claimant. Judgment ordering dismis- 
sal of libel reversed on appeal, and case remanded by appellate court for 
entry of decree of destruction.    (F. D. C. No. 11744.    Sample No. 39651-F.)
LIBEL FILED :    February 3, 1944, Southern District of California.
ALLEGED SHIPMENT : On or about December 9, 1943, by Jack Gomperts and Co., 
from Cashmere, Wash.
PRODUCT: 1,240 50-pound sacks of apple chops at Los Angeles, Calif. Analysis 
showed that the product contained an average of 0.327 grain of arsenic (as 
As203) per pound and an average of 0.560 grain of lead per pound. 
NATURE OF CHARGE: Adulteration, Section 402 (a) (1), the article contained 
added poisonous and deleterious substances, arsenic and lead, which may 
have rendered it injurious to health. 
DISPOSITION : The Washington Dehydrated Food Co., Yakima, Wash., claimant, 
having denied that the product was adulterated, the case came on for trial 
before a jury on May 11, 1944, at the conclusion of which the court gave the 
following instructions to the jury:
BEAUMONT, District Judffe: "Gentlemen of the Jury: It becomes my duty 
as Judge to instruct you in the law that applies to this case, and it is your 
duty, as jurors, to follow the law as the Court gives it to you. On the other 
hand, it is your exclusive province to determine the facts in the case, and to 
consider the evidence for that purpose.
"If the Judge has said or done anything which has suggested to you that 
he is inclined to favor the claims or position of either party, you will not 
suffer yourselves to be influenced by any such suggestion. 
v
"I have not expressed, nor intended to express, nor have I intimated nor 
intended to intimate any opinion as to what witnesses are, or are not, worthy 
of credence; what facts are, or are not, established; or what inferences 
should be drawn from the evidence adduced. If any expression of mine has 
seemed to indicate an opinion relating to any of these matters, I instruct you 
to disregard it.
"You should carefully scrutinize the testimony given, and in so doing con- 
sider all of the circumstances under which any witness has testified, his 
demeanor, his manner while on the stand, his intelligence, the relations 
which he bears to the government^or the claimant, the manner in which he 
might be affected by the verdict and the extent to which he might be affected 
by the verdict and the extent to which he is contradicted or corroborated by
See also Nos. 8803-8808, 8988.
other evidence, if at all, and every matter which tends reasonably to shed 
light upon his credibility.
"A witness false in one part of his testimony may be distrusted in others;
that is to say, you may reject the whole testimony of a witness who wilfully
has testified falsely as to a -material point, unless, from all the evidence, you
- shall believe that the probability of truth favors his testimony in other
particulars.
"You shall consider as evidence any statement of counsel made during 
the trial, unless such statement was made as an admission or stipulation 
conceding the existence of a fact or facts.
"You must not consider for any purpose any evidence offered or rejected, 
or which has been stricken out by the Court; such evidence is to be treated 
as though you never had heard it
"You are to decide this case solely upon the evidence that has been ad- 
mitted by the Court herein, considered in the light of the instructions of the 
Court.   The instructions are to be considered as a whole.
"You are the sole judges of the credibility and the weight to be given to 
the witnesses who have testified upon this trial. A witness is presumed to 
speak the truth. This presumption, however, may be repelled by the manner 
in which he testifies; by the character of his testimony, or by evidence 
affecting his character for truth, honesty and integrity, or his motives, or by 
contradictory evidence.
"In judging the credibility of the witnesses in this case, you may believe 
the whole or any part of the evidence of any witness, or may disbelieve the 
whole or any part of it, as may be dictated by your judgment as reasonable 
men.
"You are not bound to decide in conformity with the testimony of a num- 
ber of witnesses which does not produce conviction in your mind, as against 
the declarations of a lesser number or a presumption or other evidence which 
appeals to your mind with more convincing force.
"A fact in issue may be proved either by direct evidence or by proof of other 
facts or circumstances from which the fact in issue may be inferred.
"You must weigh and consider this case without regard to sympathy, 
-prejudice, or passion for or against any party to the action.
"You are instructed that this proceeding is brought under the Federal 
Food, Drug, and Cosmetic Act, which provides in part that adulterated foods 
which have been introduced in interstate commerce may be seized and con- 
demned.
"The government, libellant herein, claims that the 1240 bags of apple chops, 
which have been seized in this action, were introduced in interstate commerce, 
and while in interstate commerce were adulterated because they contained added 
poisonous and deleterious substances, that is, arsenic and lead, which may 
render them injurious to health when employed as a component part of the 
apple butter.
"The intent of the claimant is not an issue in this case and has no bearing 
on the facts you are to decide. The only question for you to determine is whether 
or not the apple chops fall under the ban of the statute.
"You are instructed that one of the matters to be decided in this case is 
whether the apple chops are a food within the meaning of the law. The Fed- 
eral Food, Drug and Cosmetic Act defines what constitutes a food. It says that 
the term 'food' means articles used for food or drink for man or other animals, 
and articles used for components of any such article. If you find from the 
evidence that the apple chops are used for food by man, or are manufactured 
into another food or used as an ingredient or component of another food, for 
instance apple butter, then the apple chops are a food within the meaning of 
the law.
"You are instructed that the Federal Food, Drug and Cosmetic Act also de- 
fines under what conditions a food shall be deemed to be adulterated. It says 
that a food is adulterated if it bears or contains any poisonous or deleterious 
substances which may render it injurious to health. A substance is poisonous 
if it has properties or effects of poison. A substance is deleterious if it is hurtful 
or destructive or detrimental.
"The Court instructs you that the opinions of experts have been introduced 
in this action for your assistance, but their opinions are not to be substituted 
for common sense and judgment of the jury. You are to exercise your own inde- 
pendent judgment, giving to such expert opinions such weight only as you deem 
they are entitled to. The introduction of expert testimony does not preclude you 
from exercising your own judgment upon the subject.   The purpose of the intro-
duction of such expert testimony is to supplement the general knowledge and 
experience of the jury in relation to the matters before them, and thereby to aid 
them in the exercise of their own judgment.
"The Court instructs you that it is your exclusive province to determine the 
credibility of witnesses, including those giving expert testimony, and determine 
the weight to be given to their testimony.
"The Court instructs you that you are not in any manner to infer or conclude 
that the apple chops in this case are adulterated because the government has 
seen fit to institute this proceeding.
"The Court instructs you that the evidence is undisputed that apple chops as 
such are not used as food but are used in the making of apple butter, jelly and 
cider, the particular apple chops here involved being intended for use in the 
making of apple butter.
"The Court instructs you that the question of whether the apple chops con- 
tain any poisonous or deleterious substance which may render them injurious to 
health depends on whether or not the quantity of such poisonous or deleterious 
substance found in the product into which such apple chops would be manufac- 
tured may render such manufactured product injurious to health. If you find 
that the apple butter into which the apple chops in this case would be manu- 
factured would not have an arsenic or lead content which might render the 
apple butter injurious to health, then your verdict should be that the apple chops 
are not adulterated by reason of the presence of lead or arsenic and they should 
be released to the claimant.
"The Court instructs you that this proceeding has been brought to condemn 
and destroy 1240 sacks of apple chops of 50 pounds each, for the alleged reason 
that they contain lead and arsenic in quantities which may render them in- 
jurious to health. In a case of this character brought to condemn and destroy 
property it is necessary that the government establish its case by clear and 
satisfactory evidence. In other words, if the evidence has not clearly and 
to your satisfaction established that the apple chops do contain lead and arsenic 
in quantities that may be injurious to health, your verdict should be for the 
release of the apple chops to the claimant.
"The Court instructs you that it is proper for you to apply to the facts 
proved your general knowledge as intelligent men, and take into consideration 
matters of common knowledge and observation.
"To render a verdict requires the unanimous agreement of the jury. What- 
ever your verdict is, it must be signed by your foreman.
"For your convenience, the Court has had prepared some forms of verdict 
which you may take with you when you retire to deliberate."
After consideration of the evidence and arguments of counsel, the jury 
returned a verdict for the claimant on May IS, 1944, and on May 24, 1944, the 
libel was ordered dismissed.
Subsequently, an appeal was taken on behalf of the Government to the 
Circuit Court of Appeals for the Ninth Circuit. On August 1, 1945, the matter 
came on for hearing before that court, and it having appeared that the claim- 
ant had consented to the destruction of the product on the ground that it had 
become rotten and valueless while in the possession of the court, thereby 
rendering moot the question upon which the appeal was based, a decree was 
entered reversing the judgment of the district court and remanding the case 
for the entry of a decree of destruction.
On September 18, 1945, judgment was entered by the district court ordering 
that the product be destroyed.