Before SWAN, MEDINA and HARLAN, Circuit Judges.
H. Wool & Sons, Inc., a wholesale seller of dairy products, and Herbert Wool, the Corporation's Secretary, who was one of its principal owners and active in the management of its affairs, have been found guilty by a jury of violating § 331(k) of Title 21 of the United States Code, 21 U.S.C.A. § 331(k),*fn1 which among other things, prohibits the doing of any act with respect to an article of food held for sale after shipment in interstate commerce which results in misbranding, as defined in § 343(e)(2).*fn2 Section 333(a), 21 U.S.C.A. § 333(a), makes violation of § 331 a misdemeanor.*fn3
The food involved was butter, alleged to have been received by Wool Inc. after it had been in interstate commerce. The act of the defendants asserted to have resulted in misbranding was the repacking of some of this butter on or about September 23, 1952 in cartons labeled in part
whereas the Government claims the butter in such packages weighed less than a pound.
The conviction of the defendants was on the third Count of an information which in the first two Counts charged the defendants with deliveries on two different dates of underweight butter for introduction into interstate commerce, also in violation of the Statutes just referred to. The jury acquitted on the first two Counts.
At the trial the Government introduced evidence, which indeed was not disputed, that shortly before September 23, 1952, Wool Inc. had obtained a shipment of butter from Zenith-Godley Company, which in turn had received the butter in interstate commerce from an Iowa concern, and that a substantial amount of this butter was on the Wool premises when the alleged repacking occurred on September 23, 1952. Nor was it seriously disputed that 19 of the 20 supposedly one-pound cartons of repackaged butter examined that day on the Wool premises by the Government inspectors were underweight.
The only factual issues under the third Count of the information which were really open to dispute related to (1) whether the butter in the 19 shortweight cartons had been in interstate commerce, (2) whether the defendants had knowledge that such was the case, and (3) whether they knew that such cartons were underweight. As to the last point, the trial Judge thought - and we must say with every justification - that defendants' counsel had conceded in his summation that the cartons were underweight. However, since it may be argued, as it now apparently is, that the statements of defense counsel in this respect related to the charges under the first two Counts of the information, we shall assume that no such concession was intended as to the third Count.
The appellants' contentions as to the absence of evidence that the defendants had knowledge of the out of state origin of any of the butter on the Wool premises or of the fact that the repackaged butter was underweight may be quickly disposed of. Both the wording of § 331(k) and the cases show that it was not incumbent on the Government to prove that the defendants knew that the butter contained in the underweight cartons had been in interstate commerce. See United States v. Dotterweich, 1943, 320 U.S. 277, 280-281, 64 S. Ct. 134, 88 L. Ed. 48; United States v. Tannuzzo, 2 Cir., 1949, 174 F.2d 177, 180. As to this issue, the trial Court charged the jury that "the law provides that if it [the butter] is brought into the state and it is misbranded here, that it is a violation." And further "that if this butter came from out of the state and was misbranded, that is a violation of the law and comes within the charge of the third count in this case." This was a correct ...