20043. Adulteration of sweet pickle relish and alleged Adulteration of sweet 
pickles. U. S. v. Archie H. Berger (Berger Foods Co.). Plea of not 
guilty. Tried to the jury. Count 3 dismissed. Verdict of guilty on 
counts 1 and 2.  Fine of $1,000, plus costs.  Judgment affirmed on appeal.
(F. D. C. No. 31539.   Sample Nos. 32298-L, 32299-L, 32302-L.) 
Archie H.  Berger, a partner in the partnership of Berger Foods Co., St.
Louis, Mo. 
ALLEGED SHIPMENT :    On or about May 3 and 17,1951, from the State of Missouri
into the State of Illinois. 
LABEL IN PART :    "Our Pride Brand * * * Sweet Pickle Relish   Distributed by
Meyer-Schmid Grocer  Company   St.  Louis, Mo.   Alton, Ill.   Bonne Terre,
Mo.," "Berger's Sweet Pickle Relish * * * Berger Foods Co.    St. Louis, Mo.,"
and "Tast-Good Brand    Sweet Pickles * * * Packed for Empire Distributing
Co.    St. Louis, Mo."
NATURE OF CHARGE; Adulteration, Section 402 (a) (4), the products had been 
prepared and packed under insanitary conditions whereby they may have 
become contaminated with filth.
DISPOSITION : The defendant entered a plea of not guilty and filed a motion for 
a bill of particulars.    The motion was overruled by the court on December 18,
1951. The case came on for trial before the court and jury on February 4,
1952, and at the conclusion of the testimony on February 6,1952, count 3 of the 
information relating to the sweet pickles was dismissed with prejudice, upon 
motion of the Government's attorney, after which the court delivered the 
following charge to the jury:
HARPER, District Judge.    "Gentlemen of the Jury:
"It now becomes my duty to give you instructions as to the law which you 
will use and be governed by and apply to the facts in this case in reaching 
your verdict on the questions that are presented to you for your decision.
"In this case, I want to remind you at the outset, although you, from the 
attitude you have displayed throughout this case, are doubtless well aware 
of it, you are a part of the administration of justice in this court and a very 
important part. You are, as the jury in this case, just as much officers of 
this court as the Judge of this court, and it is just as necessary that you 
perform your duties as officers and jurors fairly, impartially, and in accord- 
ance with the law, as it is that I, as the Judge of this court, or any other officer 
of this court, so conduct himself.
"You have listened to the evidence and the arguments of counsel in this 
case with very commendable patience. In approaching and performing your 
duties, you should have but one purpose. You should have a zeal and a deter- 
mination to do justice, exact and impartial, between the government on the 
one hand and the defendant on the other.
"Under the practice in this court, instructions can only be given to you 
orally, as I am now doing. There is no provision in the law that permits 
me to give you instructions in any other manner. It is, therefore, necessary 
that you pay close attention so that you may carry these rules of law to 
your jury room and there use and apply them to the facts of this case. You 
should bear in mind that while it may appear from time to time that I am 
giving you special instructions, that is not correct. I am giving you instruc- 
tions, and they should be received by you to apply as a whole. Don't attempt 
to separate them and disregard part of them and use and apply the remainder. 
They are given to you to be used and applied as a whole.
"There is one other particular in which cases in the Federal Court differ 
from cases in the state courts, gentlemen of the jury, and that is, your sole 
duty in this case is to pass upon the guilt or innocence of this defendant under 
the information which I have presented to you. You have nothing to do with 
the fixing of the punishment.
"During the course of this trial there has been considerable evidence intro- 
duced with respect to Count 3 of the information, which count dealt with 
Tast-Good Brand sweet pickles, which were consigned to the Litchfield 
Grocery Company, Litchfield, Illinois. During the course of the trial Count 3 
of the information was stricken by the government and taken from your 
consideration, and you have previously been instructed by the court to dis- 
regard all of the evidence introduced in this case with respect to Count 3 of 
the information. Let me again caution you that in your deliberations you 
should not consider, and you are not concerned in the least, with the sweet 
pickles consigned to the Litchfield Grocery Company at Litchfield, Illinois.
"In this case, gentlemen of the jury, you must, of course, bear in mind that 
you are the sole judges of the credibility of the witnesses and the weight to 
be given to their testimony, as well as all the evidence and the facts and 
circumstances concerning the question of products being prepared and packed 
under insanitary conditions, whereby they may have become contaminated 
with filth and thereafter introduced into interstate commerce and which have 
been presented in this trial, but in passing upon the factual issues of the guilt 
or innocence of this defendant, you should be guided and should determine 
those matters according to certain rules of law, which it is the duty of the 
court to give you, and you should accept these rules of law and apply them 
in deciding the factual issues. You should do that whether you agree with 
the rules of law that I give you or not.
"You, of course, understand that these rules of law are not original with 
me, but these are rules of law that have been announced by our supreme 
court and by appellate courts and found in the statutes, and if there is any 
error in declaring the law to you, it is the error of the court. It is your duty 
to follow the law as you receive it from the court.
"If in the course of these instructions, and if during this trial, the court 
has said or shall say anything that indicates to you how the court might feel 
or how you think the court feels with respect to the testimony in this case, 
and that opinion is different from your opinion of the testimony, you are to 
accept your opinion of the testimony rather than the court's, because it is 
your sole province to pass on the testimony, and from the testimony you pass 
upon the credibility of the witnesses, and with that the court has nothing to 
do, just as you as members of the jury have nothing to do with determining 
what the law is in this case.
"The court instructs the jury that this prosecution arises under the Federal 
Food, Drug and Cosmetic Act. The purpose of the Act is to protect the public 
health and welfare by preventing the mis-use of interstate commerce in con- 
veying to or placing before the consumer, among other things, articles of food 
which have been prepared and packed under insanitary conditions whereby 
they may have become contaminated with filth. Thus, the law touches phases 
of lives and health of people that are largely beyond self-protection.
"In this case the prosecution is based upon statutes—federal law—and 
those statutes read as follows:
A food shall be deemed to be adulterated if it has been prepared, packed 
or held under insanitary conditions, whereby it may have become con- 
taminated with filth or whereby it may have been rendered injurious to 
health.
That the following acts and the causing thereof are hereby prohibited:
The introduction or delivery for introduction into interstate commerce 
of any food that is adulterated.
Any person who violates said provision shall be guilty of a misdemeanor 
and shall on conviction thereof be imprisoned or fined or both.
"These are the statutes upon which the prosecution is based. The infor- 
mation in this case, based on those statutes, omitting the formal commence- 
ment, reads as follows:
COUNT  1
Archie H. Berger, an individual, at the time hereinafter mentioned part- 
ner of Berger Foods Company, a partnership, did, within the Eastern 
Division of the Eastern District of Missouri, on or about May 3, 1951,
in violation of the Federal Food, Drug and Cosmetic Act, unlawfully cause 
to be introduced-and delivered for introductionnnto interstate 'eom&erc'e 
at St. LOtrts,1 Stdte of Missouri, in the name of said partnership, for de- 
livery to Alton, State of Illinois, consigned to Meyer Schmid Grocer Co., 
a number of jars containing a food;
That displayed upon said jars, when caused to be introduced and de- 
livered for introduction into interstate commerce, as aforesaid, was certain 
labeling which consisted, among other things, of the following printed 
and graphic matter:
OUR  PRIDE  BRAND
Contents 8 oz.
SWEET  PICKLE  RELISH
DISTRIBUTED  BY
MEYER-SCHMID   GROCER   COMPANY
ST. LOUIS, MO. 
ALTON,  ILL.     BONNE  TERRE,   MO.
That said food, when caused to be introduced and delivered for intro- 
duction into interstate commerce, as aforesaid, was adulterated within 
the meaning of 21 U. S. C. 342 [402] (a) (4), in that it had been prepared 
and packed under insanitary conditions whereby it may have become 
contaminated with filth.
"I will not read to you in full the other count. Count 2 similarly charges 
that the defendant consigned to Miljer Wholesale Grocery Co., Inc., of JBjelle- 
ville,* "Illinois, on May 17, 1951, a number of jars which were labeled Berger's 
Sweet Pickle Relish, Contents 1 gallon fancy, Berger Foods Co., St. Louis, Mo.
"Of course, I need scarcely tell you that commerce between states is inter- 
state commerce, and that the transportation of sweet pickle relish from one 
state to another constitutes the transportation of sweet pickle relish in inter- 
state commerce.   In 'other words, it means commerce between the states.
"First, as I understand it, it is the position of the government as set forth 
in the two counts of the information that the defendant caused to be introduced 
or delivered for introduction into interstate commerce food products, namely- 
sweet pickle relish, that were adulterated, in that in each of the two shipments 
the food had been packed under insanitary conditions whereby it may have- 
become contaminated with filth.
"The defendant, on the other hand, denies each and every one of the charges 
contained in each of the counts in the information, and as I understand it, 
it is the defendant's position that the sweet pickle relish, if it was introduced 
by defendant into interstate- commerce; was* not prepared-and packed under 
insanitary conditions whereby it may have become contaminated with filth.
"So the charge and position of the government in this case and the position 
of the defendant present as the real issue for you to pass on as to Count I of 
the information a very simple matter: Did the defendant cause to be delivered 
for introduction into interstate commerce at St. Louis, Missouri, in the name 
of the Berger Food Company, a partnership, for delivery to Meyer-Schmid 
Grocer Company, Alton, Illinois, a number of jars of sweet pickle relish, con- 
tents 8 ounces, which were adulterated, in that they had been prepared and 
packed under insanitary conditions whereby they may have become contami- 
nated with filth 
"And in Count 2, did the defendant cause to be delivered for introduction 
into interstate commerce at St. Louis, Missouri, in the name of Berger Food 
Company, a partnership, for delivery to Miller Wholesale Grocery Co., Inc., 
Belleville, Illinois, a number of jars of sweet pickle relish, contents 1 gallon, 
which were adulterated, in that they had been prepared and packed under 
insanitary conditions whereby they may have become contaminated with filth  
"Those are the questions for jog, to pass upon and those/a^e the real issues > 
as to e

act count of the information—
"The court instructs the jury that there are three general questions involved 
in this case regarding which you will be required to concern yourselves. The 
first one pertains to the interstate phase. In that regard, the government has 
charged as to Count I that the pickle relish was shipped in interstate commerce >•
from St. Louis, Missouri, to Alton, Illinois; and as to Count 2 that the pickle 
relish was shipped in interstate commerce from St. Louis, Missouri, to Belle- 
ville, Illinois;
"If you find that the foods involved were not shipped by the defendant as 
charged in the two counts of the information, then it will be necessary for you 
to return a verdict of not guilty for the defendant on both counts. You may 
find, for example, in respect to one count that the shipment was1 not made by 
the defendant as charged'by the government, while in respect to the other count 
the shipment was made as charged. If you find that the defendant did ship 
the food in interstate commerce as charged in one of the counts, but did not 
make the shipments as alleged in the other count, then in respect to that count 
where you find the shipment was not made as alleged, you should find the 
defendant not guilty.
"The court instructs the jury that the defendant is charged with causing the 
introduction, or delivery for introduction, into interstate commerce of the ar- 
ticles of food, in this case which have been prepared and packed under insani- 
tary conditions whereby they may have become contaminated with filth. In 
order to find the defendant guilty of the crimes with which he is charged, it is 
not necessary for the government to prove that the defendant personally deliv- 
ered the food products to a carrier or other person for shipment from one state 
to another. If you find that the defendant caused the introduction of articles 
of food into interstate commerce which had been prepared and packed under 
insanitary conditions whereby they may have become contaminated with filth, 
or if you find that the defendant caused the delivery for introduction of articles 
of food into interstate commerce which had been prepared and packed under 
insanitary conditions whereby they may have become contaminated with filth, 
you may find the defendant guilty.
"The court instructs the jury that if you decide that the pickle products 
were shipped from St. Louis, Missouri, by the defendant to Illinois as charged 
in either of the two counts, then in respect to the count where you decide the 
food was shipped as alleged, it will be necessary for you to determine whether 
or not the pickle products were prepared and packed, under insanitary condi- 
tions whereby it may have become contaminated with filth. If you decide 
that the food products involved in either of the counts were shipped from 
St. Louis, Missouri, to Illinois and that the food was prepared and packed 
under insanitary conditions, whereby it may have become contaminated with 
filth, then in respect to those instances where you so find, there will be a 
third question for you to determine; that is, whether the defendant, Archie 
H. Berger, was responsible for such shipment or shipments. If you find 
that the food which was shipped from St. Louis, Mo., to Illinois, was adulterated 
because it was prepared and packed under insanitary conditions whereby it 
may have become contaminated with filth, and that the defendant was 
responsible therefor, then you should return a verdict of guilty against the 
defendant on the count or counts where you so find.
"The court instructs the jury that in both of the counts in the information 
the government charges that Archie H. Berger, an individual, unlawfully 
caused to be introduced and delivered for introduction into interstate com- 
merce, articles of food which had been prepared and packed under insanitary 
conditions whereby it may have become contaminated with filth, in the name 
of Berger Foods Company, a partnership. The only way in which a partner- 
ship can act is through the individuals who act on its behalf. The Federal 
Food, Drug and Cosmetic Act makes 'any individual' who violates this section 
guilty of a 'misdemeanor.' The commission of a 'misdemeanor' makes all 
those who share responsibility in the business process resulting in an unlawful 
interstate shipment guilty. Thus, if you find and believe from the evidence 
that the defendant, Archie H. Berger, was a co-partner of the Berger Foods 
Company at the times mentioned in the two counts of the information, and if 
you further find that the defendant did have a responsible share in the con- 
duet of the business at the times mentioned, taking into consideration the 
work that he did at the Berger Foods Company, his duties and responsibilities, 
and the extent to which he controlled or directed the conduct of the business, 
then you may find the defendant guilty of any or all unlawful interstate ship- 
ments made by Berger Foods Company, if you so find. Stating it in another 
way, it is not necessary that the defendant actually perform the acts which 
result in the violation of the law so long as he occupies a position of responsi-
bility in the partnership in the furtherance of whose business the violations 
occurred.
"The court instructs the jury that the intent with which the defendant 
acted is not a question for your consideration in this case. The government 
is not required to prove a wrongful intent or an awareness of wrongdoing. 
It is not necessary for you to find that the defendant intended to ship in 
interstate commerce articles of food which had been prepared and packed 
under insanitary conditions wherejfcF, At may have become contaminated with 
filth. The question of whether the defendant acted in good faith is not 
material. It is sufficient for a finding of guilt that the government prove, 
beyond a reasonable doubt, that the defendant was responsible for shipping 
articles of food in interstate commerce which had been prepared and packed 
under insanitary conditions whereby it may have become contaminated with 
filth. It is the responsibility of the person or persons who use the channels 
of interstate commerce for the distribution of food to be assured that such 
food has not been prepared and packed under insanitary conditions whereby 
it may have become contaminated with filth. The statute places the burden 
of acting, at their own risk, upon persons who ship food in interstate com- 
merce ; it does not place a risk upon the public who are largely helpless in this 
regard.
"The court instructs the jury that it is the contention of the government that 
the food products mentioned in the two counts of the information in this case 
were prepared and packed under insanitary conditions immediately or within 
a very few days before the dates of the alleged respective shipments, to-wit, 
•one shipment on May 3,1951, and one shipment on May 17, 1951.
"Thus it will be necessary for you to determine beyond a reasonable doubt 
and to a moral certainty from all the evidence" in this case before you can 
find the defendant guilty of either or both of the counts in the information, 
, not only that the conditions existing in the plant at the times of the inspection 
on May 21, 1951, were insanitary, but that the conditions at the plant were 
substantially the same at the respective times the foods involved in either or 
both of the two counts in the information were prepared and packed.
"This information which was filed against this defendant constitutes no 
evidence whatsoever of defendant's guilt and is not to be considered by you 
in that connection whatever. The information is merely the formal charge 
by which the criminal case such as this is brought into court. Its sole function 
is to identify the offense with which the defendant is here charged. If upon 
consideration of all the evidence there is a reasonable doubt of the guilt of 
the defendant remaining, the accused is entitled to the proof of that doubt by 
an acquittal, for it is not sufficient to establish a probability of guilt, but the 
evidence must establish the truth of the charge to a reasonable and moral 
•certainty, a certainty that convinces and directs the understanding and satis- 
fies the reason and judgment of the jurors who are bound to act conscientiously 
upon it.
"The term 'reasonable doubt' which I have just used has a very definite 
meaning, and I will tell you what it mKans. A reasonable doubt, gentlemen 
of the jury, is a doubt based on reason, and which is reasonable in view of all 
the evidence. If, after an impartial comparison and consideration of all the 
evidence, you candidly can say that you are not satisfied of the defendant's 
.guilt, you have a reasonable doubt; but if, after such impartial comparison 
and consideration of all the evidence, you truthfully can say that you have 
an abiding conviction of the defendant's guilt, such as you would be willing 
to act upon in some weighty and important matter relating to your own 
affairs, you have no reasonable doubt. Putting it another way, a reasonable 
doubt means a substantial doubt, and not the mere possibility of innocence.
"This rule on the meaning of reasonable doubt applies to every material 
element of the offense charged by the information. Of course, there is almost 
always difficulty in proving a fact to an absolute certainty, a complete cer- 
tainty; therefore, I remind you that a reasonable doubt does not mean a 
mere possibility of innocence, imaginary doubt, mere conjecture. So, I sum- 
marize : The defendant is entitled to any reasonable doubt you may have in 
. jour minds as to his guilt, and as to each count of the information this applies, 
and if there is a reasonable doubt, he is entitled to an acquittal at your hands 
as to each count of the information to which that applies, and at the same 
.time, remember, gentlemen, also, that if you have no such reasonable doubt
as to the guilt of the defendant, as to each- count of the information, then, 
the government is entifruitrto a* verdict at your hands as to each count as, to 
which you have no reasonable doubt. You must keep in mind in passing on 
the guilt or innocence of the defendant when you retire to your jury room 
that each of the two counts of the information constitutes a separate charge,, 
and each count of the information should be considered by you in arriving at 
the guilt or innocence of the defendant, separately. Under the evidence you 
must find the defendant guilty or not guilty as to each count of the informa- 
tion, and these instructions apply as to each count of the information, just as 
though the defendant were not charged in other counts, as though one count 
in the information. You may find the defendant guilty or not guilty on either 
of the counts of the information,- as under the evidence and these -instructions 
you conclude it is your duty to do.
"There are two kinds of evidence, direct and circumstantial evidence. The- 
charge against the defendant in this case may be proven by either direct or 
circumstantial evidence. Whether they have so proven is for you to decide. 
The evidence presented in this case is what is termed circumstantial evidence,, 
as distinguished from direct evidence.
"The weight to be given to circumstantial evidence can be stated very 
simply, and the rule is this: In order to justify a jury in finding a verdict of 
guilty based entirely on circumstantial evidence, the facts must not only be 
consistent with the guilt of defendant, but they must be inconsistent with 
any other reasonable hypothesis that can be predicated upon the evidence.
"Stated another way: Not only must the facts relied upon to show guilt be- 
proved beyond a reasonable doubt, but such facts must be consistent with all 
other facts introduced in a chain of circumstances, and such facts must further 
be inconsistent with any other rational conclusion than that of guilt.
"The guilt of the defendant may be shown by circumstantial evidence. 
Whether it has been is for you to determine. When circumstantial evidence is- 
relied upon to establish a charge of the character and kind contained in the- 
information, it is not necessary that all the circumstances concur to show the 
existence of facts sought to be proved by the government, but such circum- 
stantial evidence must be inconsistent with any other rational conclusion.
"So, I say to you, gentlemen of the jury, that you are to consider all the- 
circumstances and conditions shown in the evidence, and if it appears to you, 
even though there is no direct evidence of the actual commission by the defend- 
ant of the offenses charged in the two counts of the information, a reasonable- 
inference from all the facts and circumstances does, to your minds, beyond a 
reasonable doubt, show the defendant guilty of the offenses charged in the in- 
formation, and as to each count, you should make your deductions accordingly. 
As to Count 1 of the information, if the evidence fails to convince you beyond' 
a reasonable doubt of the defendant's guilt, you should find the defendant not 
guilty, and the same rule applies-as to each of CountsU and 3 of the information.
"The government does not charge that the shipments were prepared and' 
packed under insanitary conditions whereby they may have been rendered in- 
jurious to health, nor does the government charge that said shipments con- 
sisted in whole or in part of any filthy, putrid or decomposed substance or was 
otherwise unfit for food.
"You are instructed that you cannot find defendant guilty of having pre- 
pared and packed the shipments under insanitary conditions whereby they may- 
have become contaminated with filth, unless you find that the evidence estab- 
lished beyond a reasonable doubt and to a moral certainty that the actual 
conditions under which the food was prepared and packed were insanitary to 
such a degree that contamination with filth would follow.
"You are instructed that failure of the defendant here to take the stand and- 
testify in his behalf raises no presumption against him. The government must 
prove each and every material allegation in the information beyond a reason- 
able doubt and to a moral certainty, and there is no duty upon defendant to- 
disprove the government charges. Defendant is not obliged to testify, unless 
he desires to. He way testify if lie wishes and if he does not he cannot be 
prejudiced because of that feet.
"The words 'insanitary conditions' as used in this instruction are construed' 
to have their usual and ordinary meaning, and should not be confined to any 
scientific or medical definition.
"The word 'filth' as used in this instruction is construed to have its usual 
and ordinary meaning, and should not be confined to any scientific or medical 
(definition.
"You have observed that there has been considerable testimony in this case, 
which may be properly designated as 'Expert Testimony'; that is to say, the 
testimony of persons skilled in some art, trade, or science, or who have knowl- 
edge and experience in relation to matters which are not within the knowledge 
?of men of common education and experience.
"You are instructed that such opinion evidence as has been given in this case 
is competent evidence for your consideration, and in your deliberations you 
are entitled to give to such evidence such weight and value as you may think 
it entitled, measured by the same standard as you would weigh the evidence of 
any other competent witness' in the case.
"In judging of the evidence, you are to give it a reasonable and fair construc- 
tion, and you are not authorized, because of any feeling of sympathy or 
other bias, to apply a strained construction, one that is unreasonable, in 
?order to justify a certain verdict when, were it not for such feeling or bias, 
you would reach a contrary conclusion. And whenever, after a careful 
-consideration of all of the evidence, your minds are in that state where a 
-conclusion of innocence is indicated equally with a conclusion of guilt, or 
there is a reasonable doubt as to whether the evidence is so balanced, the 
?conclusion of innocence must be adopted.
"You are the sole judges of the credibility of the witnesses, and the weight 
to be given to their testimony. In weighing-and-reconciling the testimony, 
you should look to the demeanor and the manner of the witness testifying, 
his or her willingness or unwillingness to answer; to the lack of interest, 
or interest, of any witness in the case; to the relationship of any witness to 
the parties in the case; to the means of knowledge or lack of knowledge of 
the facts about which the witness testifies: to the opportunity of the witness 
to know the facts about which he purports to testify; to the reasonableness or 
unreasonableness of the testimony of the witness; to its probability or improb- 
ability, and whether the witness has made contradictory statements or not, 
about material matters involved in this case; and having thus carefully con- 
sidered all the matters, you must fix the weight and value of the testimony of 
each and every witness and of the evidence as a whole.
"If you should conclude that a witness has willfully testified falsely to some 
material matter in the case, you should consider that in determining the 
?credibility of the rest of such witness' testimony, and you are at liberty to 
reject all of such witness' testimony, as well as the part which you feel to have 
been willfully false.
"I do not mean to say to you that any witness has willfully testified falsely 
to any material matter in this case. I give you the rule, that you may use 
it as in your good judgment the facts in this case warrant and justify.
"Lounger arguing this case have •'Commented upon the facts of the case. 
'That is their privilege, and that is perfectly proper for them to do so; but 
if you find any variance between the facts as testified to by the witnesses and 
as have been stated by either counsel in arguing the case, then you should 
?disregard anything that is said by counsel as to the facts of this case which 
you  believe  to  be at variance  from  what  the witnesses  testified  to.
"Generally speaking, you, without doubt, have recognized that what I have 
said to you regarding the manner in which you should pass on the testimony 
of the various witnesses and things you should consider, that it simply means 
that you should use your own good judgment and sound common sense, just 
as you would in acting upon the most vital and important matters pertaining 
to your own affairs. Pass on the facts of this case in the light of your own 
knowledge of the natural tendencies and propensities of human beings.
"Based solely on the evidence and under these instructions, free of any 
prejudice, sympathy, or bias, reach a verdict in this case. Carry on your 
deliberations, gentlemen, in a calm, cool and deliberate manner. You should 
freely consult with one another in your jury room in discussing any one of 
the issues. If any one of you should-be-convinced in-his own mind that his 
view on the factual issues or factual issue in the case is erroneous, then such 
juror should not be stubborn, such juror should not hesitate to abandon a 
view, if the juror is convinced it is erroneous. It is entirely proper, it is a 
juror's duty to adhere to a view or conclusion which, in the juror's mind,
after a full exchange of ideas and discussions, the juror believes to be correct 
and right, but no juror should substitute or accept the opinion of other jurors 
for his own opinion merely for the sake of expediency.
"When all of you agree to a verdict, then the verdict is the verdict of you 
as a jury. Your verdict must be unanimous. You will find a form of verdict 
to take with you to your jury room.   It reads as follows:
We, the jury in the above entitled cause, upon the trial of the information 
herein, as to defendant, Archie H. Berger, find as follows :
We find the defendant, Archie H. Berger, 
, as charged in
Count 1 of the information. 
"Into that blank you will write 'guilty' or 'not guilty' as you find on Count 1 
of the information.
"You will find a like blank as to Count 2 of the information, and as you find 
the defendant guilty or not guilty as to each of the counts of the information, 
you will insert your finding in the blank; and you will find a place for the fore- 
man alone to sign the verdict as such.
"When you retire to your jury room to deliberate on this case, you will select 
one of your number as foreman; and he will sign the form of verdict and rep- 
resent you as spokesman in any further conduct in this court of this case.
"I will give you the information in this case to take to the jury room with 
you, simply and solely to identify the charge, and if, during the course of your 
deliberations, you decide that you want any or all of the exhibits that were- 
introduced, simply notify the bailiff by giving him a note, and whom you will 
find outside your door, and any exhibits you call for will be given to you."
A verdict of guilty as to counts 1 and 2 relating to the pickle relish was- 
returned by the jury on February 6, 1952. The defendant then filed motions 
for a judgment of acquittal and for a new trial. On March 6, 1952, the court 
overruled these motions and imposed a fine of $1,000, plus costs, against the- 
defendant.
A notice of appeal to the United States Court of Appeals for the Eighth 
Circuit was filed by the defendant on March 14, 1952, and on December 30, 
1952, after consideration of the briefs and arguments of counsel, the following- 
opinion was handed down by that court, affirming the judgment of the district 
court:
COLLET, Circuit Judge: "Defendant was charged in three counts with unlaw- 
fully causing to be introduced and delivered for introduction into interstate 
commerce a number of cases of pickles and pickle relish in jars, which were 
adulterated within the meaning of 21 U. S. C. 342 [402] (a) (4) in that they 
had been prepared and packed under insanitary conditions whereby they may 
have become contaminated with filth. The three counts related to separate 
shipments, one made on May 3, 1951, and two on May 17, 1951. At the close 
of the Government's case the Government dismissed the third count of the 
information. Motion to dismiss Counts One and Two was made by defendant 
at the close of the Government's case on the grounds that the information did 
not state facts sufficient to constitute an offense and that the statute upon 
which the information was based is unconstitutional. A separate motion for 
judgment of acquittal was made upon the ground that the evidence was in- 
sufficient to sustain a conviction. These motions were overruled. The de- 
fendant offered no evidence. The case was submitted to a jury which returned 
a verdict of guilty on both counts. After the verdict, the motion for judgment 
of acquittal on the ground of the insufficiency of the evidence was renewed 
and again overruled. Judgment and sentence followed, from which this appeal 
is prosecuted. Only two questions are presented on this appeal. Defendant 
challenges (1) the constitutionality of the statute, and, (2) the sufficiency of 
the evidence.
"Unconstitutionality of the statute1 is asserted upon the ground that it is 
so indefinite, uncertain and obscure that it does not inform one accused there- 
under of the nature and cause of the accusation in violation of the Sixth 
Amendment to the United States Constitution,2
"The constitutional test of definiteness and certainty of the language used 
in a statute defining a criminal offense has been frequently stated. Reference 
to only a few of the cases will sufficiently demonstrate the rule.
"In United States v. Brewer, 139 U. S. 278, 288:
Laws which create crime ought to be so explicit that all men subject 
to their penalties may know what acts it is their duty to avoid. (Citing 
United States v. Sharp, Pet. C. C. 118.)
"In Connolly v. General Const. Co., 269 U. S. 385, 391, it is stated thus:
That the terms of a penal statute creating a new offense must be suf- 
ficiently explicit to inform those who are subject to it what conduct on 
their part will render them liable to its penalties, is a well-recognized 
requirement, consonant alike with ordinary notions of fair play and the 
settled rules of law. And a statute which either forbids or requires the 
doing of an act in terms so vague that men of common intelligence must 
necessarily guess at its meaning and differ as to its application, violates 
the first essential of due process of law. Interna-tional Harvester Co. v. 
Kentucky, 234 U. S. 216, 221; Collins v. Kentucky, 234 U. S. 634, 638.
"And in United States v. Cohen Grocery Co., 255 U. S. 81, 89:
The * * * inquiry * * * is the certainty or uncertainty of the text in 
question, that is, whether the words * * * constituted a fixing by con- 
gress of an ascertainable standard of guilt and are adequate to inform 
persons accused of violation thereof of the nature and cause of the ac- 
cusation against them.
"In the late case of Jordan v. De George, 341 U. S. 223, the Chief Justice, 
speaking for The Court, said:
The essential purpose of-the "void of vagueness" doctrine is to warn 
individuals of the criminal consequences of their conduct. * * * This 
Court has repeatedly stated that criminal statutes which fail to give 
due notice that an act has been made criminal before it is done are un- 
constitutional deprivations of due process of law.
*
*
*
*
*
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We have several times held that difficulty in determining whether cer- 
tain marginal offenses are within the meaning of the language under 
attack as vague' does not automatically render a statute unconstitutional 
for indefiniteness. United States v. Wurzbach, 280 U. S. 396, 399 (1930). 
Impossible standards of specificity are not required. United States v. 
Petrillo, 332 U. S. 1 (1947). The test is whether the language conveys 
sufficiently definite warning as to the proscribed conduct when measured
1 "SEC. 331. Prohibited acts.
The following acts and the causing thereof are hereby prohibited : 
(a)  The introduction or delivery for introduction into interstate commerce of any 
food, drug, device, or cosmetic that is adulterated or misbranded."
"SEC. 333. Penalties—Violation of Section 331.
(a) Any person who violates any of the provisions of section 331 shall be guilty of a 
misdemeanor and shall on conviction thereof be subject to imprisonment for not more 
than one year, or a fine of not more than $1,000, or both such imprisonment and fine; 
but if the violation is committed after a conviction of such person under this section has 
become final such person shall be subject to imprisonment for not more than three years, 
or a fine of not more than $10,000, or both such imprisonment and fine."
"SEC. 342. Adulterated food.
A food shall be deemed to be adulterated—
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* 
* 
* 
* 
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(a)  * * *  (4i)> if it has been prepared, packed, or held under insanitary conditions 
whereby it may have become contaminated with filth, or whereby it may have been 
rendered injurious to health;  *  *  *." 
21i U. S. C. A.
2 "In all criminal prosecutions, the accused shall enjoy the right to * * * be informed 
of -the- Hatu-xe and cause of the accusation ; * * *."
by common understanding and practices.   Connally v. General Construc- 
tion Co., 269 IT. S. 385 (1926).
"It should be noted that the statute in question is designed to prohibit the 
introduction or delivery for introduction into interstate commerce of food, 
etc., which is adulterated. In aid of that objective it defines an adulterated 
food as that which '* * * has been prepared, packed, or held under insanitary 
conditions whereby it may have become contaminated with filth.' It is clear 
that the congressional intent is to make it a criminal offense for a person 
to prepare, pack or hold food under such insanitary conditions that it may 
become contaminated. It is not necessary that it actually become contami- 
nated. Stated in the language of Chief Justice Stone in Com Products Co. 
v. Federal Trade Commission, 324 U. S. 726, 738, the statute is designed to 
prevent adulterations 'in their incipiency by condemning insanitary condi- 
tions which may result in contamination.
"It is clear from an examination of United States v. Lexington Mill & 
Elevator Co., 232 U. S. 399, Standard Fashion Co. v. Magrane-Houston Co., 
258 U. S. 346, and Com Products Co. v. Federal Trade Commission, supra, 
that the clause—'whereby it may have become contaminated'—is not to be 
construed to mean that criminality may be predicated upon proof of an in- 
sanitary condition which gives rise to a 'mere possibility' of contamination. 
The condition condemned by the statute, which must be proved to support 
a conviction, is one which would with reasonable possibility result in con- 
tamination. Federal Trade Commission v. Morton Salt Co., 334 U. S. 37, 46. 
Such construction placed upon the words 'which may < render such articles 
injurious to health' resulted in the statute being impervious to attack on 
constitutional grounds. United States v. Lexington Mill & Elevator Co., 
supra.   That is also true of the statute now under consideration.
"In the light of the foregoing construction of the statute, does it convey 
a sufficiently definite warning of what conduct will constitute a crime? Its 
plain meaning is that no one shall prepare, pack or hold food, in this instance 
pickle relish, for introduction or delivery for introduction into interstate 
commerce under conditions which would with reasonable possibility result 
in the food becoming contaminated with filth.
"It is contended that because the statute leaves open for determination 
the degree of insanitation which would possibly or probably result in con- 
tamination, it does not meet the test of definiteness. Or, as the argument 
was put in Nash v. United States, 229 U, S. 373, estimates of the degree of 
dirtiness and lack of sanitation which would probably or with reasonable 
possibility bring about the prohibited result might differ and a man might 
find himself in prison because his honest judgment did not anticipate that of 
a jury of less competent men. But the law is full of instances where a man's 
fate depends on his estimating rightly, that is, as the jury subsequently 
estimates it, some matter of degree. The criterion of criminality is to 
'examine whether common social* duty would, under the circumsfcffiees,"' have 
suggested a more circumspect conduct. Nash v. United States, supra. As 
illustrated in the Nash case:—'An act causing death may be murder, man- 
slaughter, or misadventure, according to the degree of danger attending it 
by common experience in the circumstances known to the actor.' The perpe- 
trator of the act must be held responsible for estimating what the jury may 
determine was the probable result of his act. No constitutional infirmity 
results when a statute imposes that burden.   Nash v. United States, supra.
"The argument is advanced that the statute is void for indefiniteness 
and uncertainty because it contains no definition of 'insanitary conditions' 
and without such a definition no intelligent person can tell in advance when 
a condition violates the statute. We do not agree. The terms 'insanitary 
conditions' and 'contaminated' are descriptive terms commonly used and un- 
derstood. True, there are degrees of insanitary conditions, some worse than 
others. And there are degrees of contamination. But both define a condition. 
And as heretofore demonstrated, the fact that a statute contains in its 
definition an .element of degree as to which >estimates may-differ does not 
result in unconstitutional indefiniteness or uncertainty. When the terms 
'insanitary conditions' and 'contaminated' are read with the qualifying word 
'filth,' all become possessed with a more definite meaning. Impossible stand- 
ards  of specificity  are  not  required.    Jordan  v.   Devore,   supra.   It   is
difficult to think of a more apt way to say that one should not prepare 
food under conditions whereby it would probably be filthy. Any reasonably 
intelligent person should know what that mKans. The statute is not subject 
to this attack.
"Defendant contends that the evidence was insufficient to sustain the 
verdict. Defendant, a partner in the business of making pickles at a plant 
in St. Louis, Missouri, was charged specifically with unlawfully causing to 
be introduced and delivered for introduction into interstate commerce, in the 
name of the partnership, for delivery to named consignors in Illinois, a 
number of jaus containing food, to wit, sweet pickle relish, which was adul- 
terated in that it had been prepared and packed under insanitary conditions 
whereby it may have become contaminated with filth. An inspection of defend- 
ant's plant was made by an inspector for the Food and Drug Administration 
on May 21, 22, and 23,1951. On May 29, 1951, the three shipments involved in 
the three counts of the information were seized at the place of business of 
the consignees in Illinois and later analyzed by government analysts. There 
is no contention that the seized shipments were not made at defendant's plant 
and shipped therefrom on May 3,1951, and May 17,1951. There is no question 
from the evidence of the insanitary condition of the plant on the dates the 
inspections were made. Defendant's argument is based on the fact that no 
government witness saw the shipments in question prepared, canned in glass 
jars and shipped, and that the testimony relative to the conditions existing 
on May 21, 22, and 23, and the analysis of the contents of the shipment was 
insufficient to show beyond a reasonable doubt that the plant was in an 
insanitary condition on the dates of the shipments, May 3 and May 17.
"The evidence shows the following facts. The plant is housed in a brick 
building 60 feet wide and 150 to 200 feet long from north to south. Pickle stock 
is brought into the plant by railroad car through a large door. The brick 
walls contain approximately 200 unscreened glass windows. The glass in 20 
or 25 has been broken out. Pigeons fly in and out. Sometimes they are shot 
and killed inside the plant. The outside doors are unscreened. The relish- 
making area is located in the south end of the building. The plant was not 
operated continuously. Orders were made up as received. Canning operations 
were suspended at intervals between orders. At the time of the inspections 
on May 21 and 22 no pickles were being canned. The hopper of the pickle 
chopper was rusted and corroded, the shaft rusted and grease was running 
down the shaft onto the cutting blades of the chopper. The chopper was so 
constructed that the chopped pickle material fell from the chopper onto a 
wooden trough which conveyed it into a vat on a lower level. Pickle relish 
material remaining from the last operation was imbedded in cracks in the 
wooden trough. In the relish-making area was a wooden table covered with 
dust, stained material, and its supporting structure was encrusted with spider 
webbing. In that area were 16 uncovered barrels of pickles and one barrel of 
onions.   Vinegar flies were flying over the uncovered barrels, spider webbing
. partially covered the openings of six barrels approximately full of pickles, a 
spider, was in the webbing above-one barrel, houseflies rested on pickles in 
another barrel, on each pickle floating on top of the solution in another-barrel- 
there were two or three vinegar flies, bird feathers floating in the solution in 
another barrel, moldy pickles in two barrels, and a spider climbing over the 
pickles in another. In addition to the barrels, large vats approximately six 
feet in diameter and five feet high were used in the making of defendant's 
product. In two of these vats were pickles not in solution. Those pickles 
were covered with a whitish and grayish mold approximately one-half inch 
thick. There was a railroad car in the plant at the time of the inspection 
on May 21. On the railroad car there were wooden vats and in the vats were 
pickles in solution. In this solution were particles of sticks, grass, muddy 
pickles, and particles which resembled insects.   On the outside of the plant
. were a number of vats, one partially full of pickles, some entirely or partially 
filled with water. Sticks and other foreign material were in the water. Trash 
and pickles in various stages of decomposition were on the ground around 
these vats. At another location inside the plant were other larger wooden 
vats, eight to ten feet in diameter. In some of them were pickles in solution, 
some were empty, none were covered. Pickles were scattered around the vats, 
some in reasonably sound condition, others in various Stages of decomposition. 
The pigeons "heretofore referred to appear t(rha^e=hadi access rtomilaEgetpaxtr
if not all of the area inside the plant. They were not trained pigeons and 
were not housebroken. The result of their habitation in the plant was what 
would reasonably be expected.
"It is defendant's theory of the law that these conditions cannot be presumed 
to have existed when the seized shipments were canned and shipped. As to 
the time they were canned there was evidence permitting the inference that 
the canning took place about the time of the shipments. There is no dispute 
that the shipments involved in Counts One and Two were made on May 3 and 
May 17, 1951, respectively. The evidence describing the conditions on May 21, 
22, and 23, in some particulars justified an inference that those conditions had 
existed for a considerable period of time. But there was additional and more 
direct evidence of what the conditions were in the plant at the time the 
shipments in question were canned and shipped. The analysis of the contents 
of the seized shipments showed that the jars contained, in addition to pickle 
relish, fragments of a fly skin, part of a fly's leg, a number of mites, part of 
a beetle wing, a moth scale, fragments of feathers and fragments of rodent hair. 
The evidence was not insufficient to support the verdict.
"The judgment is affirmed."
TOMATOES AND TOMATO PRODUCTS