6. The court finds that said eggs were transported from St. Louis, State of Missouri, to Peoria, in the State of Illinois, as aforesaid and were received by Thomas & Clarke at Peoria on or about November 16, 1908.

7. The said shipment consisted of 130 cans, each can containing about 42 pounds of eggs. Each can was a separate sealed package. The eggs in the cans were whole eggs, minus the shells, that had been broken out of the shells into these cans.

8. The court finds that the said eggs were an article of food and contained added to it a deleterious ingredient known as boric acid which may render such article injurious to health, and that the said eggs were in fact injurious to health, and the court further finds that the amount of boric acid contained in said eggs was approximately 2 percent. And the court finds that said eggs were adulterated within the meaning of the act of June 30, 1906.

9. Thomas & Clarke did not know at the time of shipment that said eggs contained boric acid. At the time of making said contract Thomas & Clarke did not know by what process Hipolite Egg Company would preserve said eggs, but did know that the eggs were to be preserved by having added thereto some kind of a preservative, in addition to being sealed in air-tight cans.

10. At the time of the seizure of said eggs they were stored in the storeroom of Thomas & Clarke in their bakery factory at Peoria, along with their bakery supplies. About 80 cans of said shipment had been used by opening said cans and pouring said eggs into a mixture of flour and other ingredients and thereby making a dough. This dough was baked into pastry, such as vanilla wafers, and this pastry was sold to the public. The 50 cans of eggs, more or less, seized by the marshal were intended and about to be used for baking purposes as aforesaid at the time of seizure, and said eggs were not intended to be sold as eggs in the original unbroken packages, or otherwise, but were to be used only as above set forth and were transported as aforesaid only for such purpose, but at the time of seizure said eggs were in unbroken original packages, as originally shipped and were then on the premises of Thomas & Clarke unsold.

The Hipolite Egg Company, claimant, sued out a writ of error and also appealed from the aforesaid decree to the Supreme Court of the United States on the ground that the trial court was without jurisdiction in the case. The jurisdictional questions involved are set forth in the trial court's certificate, which is as follows:

CERTIFICATE OF JURISDICTIONAL QUESTIONS

The District Court of the United States for the Southern District of Illinois hereby certifies to the Supreme Court of the United States that on the 18th day of December, A.D. 1909, a decree was entered in the above-entitled cause confiscating said 50 cans more or less of preserved whole eggs and assessing the costs of said case against Hipolite Egg Company, claimant in the above-entitled

cause.

And this court further certifies that in said cause the jurisdiction. of this court is in issue; and that said question of jurisdiction was raised in the following manner:

1. The libel in this case was a proceeding in rem under section 10 of the act of June 30, 1906 (34 Stat. 771), against 50 cans more or less of preserved whole egg, the libel alleging that said eggs were transported in interstate commerce from St. Louis, Mo., to Peoria, Ill., and were adulterated within the meaning of said act.

2. It appeared from the evidence on the part of the libelant on the trial of this cause that said eggs before the shipment alleged in the libel had been stored in a warehouse in St. Louis, Mo., for about five months, during all of which time the said eggs were the property of and owned by Thomas & Clarke, an Illinois corporation engaged in the bakery business at Peoria, Ill., in this district.

3. On or about November 1, 1909, Thomas & Clarke procured the shipment of these eggs from St. Louis, Mo., to themselves at Peoria, Ill.; and upon receipt of said eggs Thomas & Clarke placed the shipment in their storeroom in their bakery factory at Peoria along with their other bakery supplies.

4. These eggs were intended for use by Thomas & Clarke for baking purposes, and were not intended for sale by them in the original unbroken packages or otherwise, and were not so sold.

5. Hipolite Egg Company, a corporation of Missouri, appeared as claimant of said eggs and intervened and filed an answer to said libel and defended this case, but did not enter into any stipulation to pay the costs of this case.

6. Upon the close of libelant's evidence and again at the close of all the evidence counsel for claimant moved the court to dismiss said libel on the ground that it appeared from the evidence that this court as a Federal court had no jurisdiction to proceed against or confiscate said eggs, because said eggs were not shipped in interstate commerce for sale within the meaning of section 10 of said Food and Drugs Act, and for the further reason that the evidence showed that said shipment of eggs had passed out of interstate commerce before the seizure of said eggs in this case, because it appeared that said eggs had been delivered to Thomas & Clarke and were not intended to be sold by them in the original unbroken packages or otherwise.

7. This court overruled said motions, to which rulings counsel for claimant then and there duly excepted, and this court then proceeded to hear and determine said cause and entered a decree finding said. eggs adulterated and confiscating the same and assessing the costs of this case against the claimant, Hipolite Egg Company.

8. Counsel for claimant excepted to the rendition and entry of said decree on the ground that this court is without jurisdiction in rem over the subject matter and on the further ground that this court is without jurisdiction to enter a judgment in personam against said claimant Hipolite Egg Company for costs of said case as aforesaid. And this court therefore certifies to the Supreme Court of the United States the following questions of jurisdiction raised as aforesaid:

First: The question of whether this court had jurisdiction in rem over said eggs transported as aforesaid.

Second: The question of whether this court had jurisdiction to render and enter a decree for costs against the claimant, Hipolite Egg Company, in personam.

UNITED STATES v. JOHN A. TOLMAN & CO.

(District Court, N.D. Illinois, Dec. 23, 1909)

N.J. No. 271

Information alleging violation of section 2 of the Food and Drugs Act. Jury trial. Verdict of guilty. Motion for new trial and in arrest of judgment overruled.

LANDIS, District Judge (charge to the jury). This is a case which is governed by the rules of the criminal law. The paper filed by the United States formally charging the offense against the defendant is not an indictment; it is called an information. But the rule which guides you, which you must observe, is the same rule that would be in force if, instead of an information, it were a grand jury indictment. Now, in this case, it is by this rule of the criminal law that it devolves upon the United States to establish this charge against the defendant beyond all reasonable doubt as distinguished from establishing the charge by the preponderance of the evidence, as has been the rule in some civil cases which you gentlemen have served in. You will recall that in a civil case the court instructed you as to the rule governing in that case, namely, that that side in the litigation which had the greater weight of the evidence was entitled to your verdict. Not so here.

Now, by this expression of reasonable doubt is meant such a state of mind on the part of the jurors, and each juror, where that juror may say that he has an abiding conviction of the guilt of the defendant of the offense charged, that is to say, there is no hypothesis consistent with the defendant's innocence that you can reasonably arrive at. If you are in that frame of mind, the guilt of this defendant of this charge has been established beyond a reasonable doubt. It does not mean such a state of mind as a man may work himself up into in an endeavor to find a way out for somebody accused of crime. That is not a reasonable doubt.

Now, at the outset of this proceeding this defendant is presumed to be innocent, just as in the case of an indictment. It is presumed to be innocent of this offense. The making of the charge, the conducting of the inquiry, the analyses made by all of these witnesses prior to this hearing, the filing of the papers in the court, the issuance of the summons-all that counts for nothing as far as the matter of the guilt of the defendant is concerned, the point being that when you take your oaths here as jurors the defendant stands before you as innocent of this charge as you are; that is what the presumption of innocence means. It is not a form nor a conventional expression which has no color nor meaning. It is a real substantial right, a right of such substance that it has to be torn down and destroyed by evidence-evidence of such a character as to put your mind in that state where you may say, as I said before, you have an abiding conviction of the defendant's guilt. Now, it has been said that it is an important case for the United States. It has been said that it is an important case for this defendant-because it has been said there are people away from this court room interested in the outcome of this litigation. You have not anything to do with that—not a thing—

with that procession on the sidewalk moving by this building you have no concern whatever, save only that it may hear that you have answered your obligation under your oaths in this lawsuit between the parties litigant here in this court room. Now, there is the important thing in this situation, and if you discharge that obligation you have discharged your duty, regardless of what the consequences of your verdict may be.

This

Now, the charge in this case is that this defendant, the John A. Tolman & Company, on the 3d day of October 1907, delivered to the Chicago, Milwaukee & St. Paul Railway Company two packages for transportation over the rails of that company from Chicago, the place of delivery, to Algona, in the State of Iowa; that these packages contained 4 dozen 1-quart oblong tin receptacles filled with a preparation called "Topmost cane and maple syrup and that to each one of these quart oblong tin receptacles-in plain language, a tin can; you have seen it here were then and there attached, one upon the front, the other upon the back, labels; which said labels did then and there contain various printed matter; that these labels, that is to say, the one attached to the back of each of these tin receptacles, containing this commodity referred to as "Topmost cane and maple syrup ", contained the following statement: syrup is composed of the following ingredients, and none other: Cane syrup 60%; Maple syrup, 40%. John A. Tolman and Company, Chicago." Then, the charge is in the information that that statement in the label is false and misleading in that the article contained in the tin receptacle contained little, if any, maple syrup. Those portions of the law for an infraction of which the defendant is sued in this case provide that the delivery for shipment of an article of food misbranded for transportation to another State than the point of delivery is prohibited and punishable. The term "misbranded" as related to food means, if the package containing the food product, or the label on the package containing the food product, bears any statement, design, or device regarding the ingredients or the substances therein contained, which statement, design, or device shall be false or misleading in any particular, then, in the case of a charge that-a charge involving the food section, there is a misbranding. So, the charge in this case is in substance that the defendant company, on the date named in the information delivered to the St. Paul road for transportation by that company over its road to Algona, to the addresses named in the information, the consignees named in the information, 2 boxes containing 4 dozen of these tin receptacles, each of which tin receptacles was misbranded in the respect indicated, namely, that the brands stated 40 percent maple syrup when, in truth and in fact, the commodity contained little, if any, maple syrup. The defendant pleads not guilty to this charge. And the charge with the plea, raise the issue, as I have stated, that you are to determine and express by your verdict: Did the defendant deliver to the St. Paul road at the time indicated, 4 dozen of these receptacles contained in these 2 boxes, consigned as the information states. Now, as to that phase of the inquiry, dealing with the question of the contents of those other receptacles in the 2 boxes, other than was examined by the chemists, these which it is

167546-34- --6

admitted by the stipulation were found on the shelves of the Algona merchant; I have this to say: You are authorized, if in your judgment the proof justifies it, having in mind the rule of presumption of innocence and reasonable doubt, as I have defined those expressions to you, you are authorized, if you believe the testimony shows a misbranding as to those receptacles referred to specifically in the evidence as having been analyzed, you have a right to infer, and the law authorizes you to infer from that proof as to the contents of the specific receptacles examined and analyzed, that all of the receptacles contained in those 2 boxes contained the same ingredients and were the same commodity. I say you are authorized to infer that considering the testimony of the witnesses as to what was contained in this and all the other evidence in the case, even with no evidence of a specific examination of the other receptacles that went with this receptacle in the box, if you say, if you can say, I have an abiding conviction that the other receptacles in those boxes other than the ones examined contained this same thing, then, on that phase of the case, you have no reasonable doubt, and in determining the question of what is proved here in that regard, as well as in all others, the rule is that in a criminal case, as in a civil case, you bring into the jury box with you your common sense judgment. You take the testimony of the witnesses here and the evidence in this stipulation of facts which the counsel in the case representing the two litigants have agreed to, and subject that testimony to the same kind of judgment that you would subject your important matters away from here to, at your home or in your business, with no purpose save only to answer the question, guilty or not guilty, as charged here, and, as I said a while ago, without any possible or remote regard to the fact that the United States of America or the defendant considers this a very important lawsuit. This is no more important than any other. Subject the testimony of these witnesses, the testimony of this stipulation, all of it together, to your common-sense judgment, to determine you in answering the question whether or not the contents of the receptacle is as charged in the Government's information, namely, does it contain little or no maple syrup? The facts in this case are for you and not for me. have no inclination nor authority to control your determination of a matter of fact. Were I to do that, it would be an invasion of your rights and authority. You cannot shift that burden to me, if you want to. It is on your shoulders, and not mine. The law of this case is on me, and it is the law that you must take my word for the law, even though you disagree from me as to the law, even though you may think it is not a good law, that you could write a better law, or there should be no law on this subject. It is this thing here that binds you and me in this lawsuit, and this thing here that must be enforced in this case, if the facts of this case fit this law, no matter what your private view may be.

I

Now, coming to the question-and there does not seem to be much dispute in this case as far as you are concerned-matters for you to determine. There does not seem to be much dispute in this case to bother your minds, that is to say, dispute between witnesses. The difficulty here, if any there be, is in coming to a conclusion of the evidence of the witnesses introduced on one side, as to whether