Record P — Nye & Nissen v. United States (No. 228)

Supreme Court brief1948

Ask Donna

What actually matters in this document.

Text

210 | Nye & NissenwSand 4. Méncharsh

- that’ 1s in evidence is not included in the exhibit

. . ,o gt . - ° ee, .

. =: @

’ »

en ee

| (Testimony af Robert B. Merielé, ) * ers

« Al? That is de fined i note specifications for in

- dividual shell looys, FE hibit aes ete

@. LT see'the words “U.S. ( heek and “US.

Leakers” noted: What defines a U.S. Cheek and 7

a U. S. Leaker & | ee ae -

A. ‘Those aire. alsa defipeéd in U, Ss. exhibit 21.7

Attention to the first UL w+

orade, the -second: line thereunder, following the

wel ‘shell’? is thee word ° ‘eling.”” What defines

Q).” Directing you

a cling shell? R

Mr. Faulkner: .We object to. that as incompetent,

irrelevant and immatagial, hot binding On the de-

fendants. ; Soe.

> Mr. [Lip peli: ae ‘ttempting to sliow Phat the

information’ pene! on: this chart is. contained

“in the U nited States kxhibit No. 24 for Ide intific ae

Tion, to which ‘Mr. Faulkner has objected on “the

_ ground that the information contained in the chart

21 for’ Identifigation. aitges 0 Mig

“Faulkner: oT lie Court bas pe rmitted the doc-

ument in evidence e,if the Court ples we, and TP umnder-

stood vour Honor sustained my objection on Ex-.

Pihit 21 and indicated to Mr. Hippeli that he nad *

“not brought home that document to the defendaats. :

Now: he ds trying to bind the. de ‘fendants with thi?

ae umnent in cireumyenting ‘the Court's ruling.

in ‘other words, tf he is wong to. have eyerything

i Exinbit’ 21 read, in evide nee by thee witness, Une Di

ae Je brings it hoine to. the defendants-—-

a itp ee Bee | .

0 nited States of America ~2i

ay calmer ‘of Rohe rt B Meriele. 4

The Court: ° You tay’ ‘inilicate What ‘this cha ue Poi

indicates.” -You miiy deve lop that’

Mr. Hip fii: “What. bo am attempting to do,

your Honor, is to vet. & nited Sti ites ixhibit No. 23 ms

into bvidence and the chart, knowledge of which, |

has been brought home to the defendants, the iii

formation contained on that chart, and a fiw ther

i ‘

definition wf the terms contained on the. chart. are

set forth in lexhibit ai, which, f dey tu offer after | :

[bring that fact out from the w Itnpss. er

| Mr. Faulkner: : But that does not. bring it home |

to. the witness. ‘That was the s the point of the Court's. *

ruling as indic ated by the Court. |

The Court: They are not bound by at unfless i

is established that. they were served with a CODY,

had knewledge of it, or had brought home in some ;

manner ‘to ‘them the contents of -it.» We will take ° :

a Kecess for a. few. minutes a te eo a tae ge

. ,CReeéas. \ ioe : Y

Mr. Hippeli: G. * Rete ring .: to United States

[Exhibit 21 for Identitication, United States Stani-

ards ‘for 4 Quality for Tpdividual Shell ges oem

My. Faulkner: We object to that as a designa-

~ tion for that [67] ‘document, vour Honor. 1 have

hada cliance to look at-it. The document. is this:

This is a docume nt, to he emploved for the ‘gi rading

and coptitic atom, of shell eggs by offic ial vraders of

the U ited? St: ites, That is all it is and th: it is all

it purports to ha an inter- rome ation between

Cyc départinent Kv another ‘to guide U.S. gt raders, .

tot to euuide. the business, We have lets of them to! A

’

“ .

Nyowd Nissen and A. Moncharsh

(Testimony of Robert B. Mericle: ) eae At

guide fhe business, and when they come along we,

lave ne. objec tion, .

Mr. Thippeli: His objection i Is to my Use of the

name which appears onthe top of the document.

-T ani using that to identify the exhibit.

. Mr. Faulk: It is exhibit 21. :

Mr. Hippeli: Does: your Honor care to ryke on:

tat) Dye. ; . § ee \

Fhe ‘ourt: There is-nothing before the Court.

Mr. hk ‘aulkner: = | was not objectiny; I was’ ad-

vising tht ‘Court What the, document on- its face >

tire ESI parports tebe, — te DA 3

Mr. ilippetiz: .Q. Doctor, directing your atten- |

tion to United States Exhibit No. 21 for Identitica-

tion, | will ask you if vou ever saw that exhibit or

a copy of that exhibit down . the Nve & “Nissen

pli int in San Francisco? | * Yes.

Q. Approximately when, ee ?

AL. Se ‘pte niber : 1944.

Q. Whe was present a

A. May Moneharsh and, Mr Goddard.

Q. Was anyone‘else present? A. -No.

_Q. Was any conversation had at ‘that time ?

4. It was with reference to the discussion of

individual Shell egg quality, Tox].

Q. Will vou tell us w hat the conversation Was.

tent, irre fevant and immaterial, hearsay, ‘and. not.

Mr. Paulkner: We will objett to it as iIncompe-

testimony that will have any effect on the offenses

charged its committed in the month of May, W944.

The Courti A. conversation with whom ?

the

. oy ee United States of America Sais,

(Testimony of Robert B. Meriele.) 20.40 6 |

Mr. Hippeti: dt ‘is a conversation between Dr.

Mericle, Abraham Mone harsh, one of the defend-

afts, and Ma. Gada: way, anothe r one of the defend

anits, ee OS 0 United States - Exhibit ).

Tdenitifieation. -

Mr. Raulkner: “Not binding on any other de ‘fend-

ant except those hazed, . : Res

The Courts. The> objection, ai he. overruled.

You may ansiver. It is limited to the cenversation,

"With the defendants. “Did you fix the time ?* aR

Mr. Teippelit Yes. September, 1944. *

Mn. Faulkner: - Five mouths after the claimed-

3 st

“tonimission of tlie substantive offenses, your Honor,

a conversation between two of the’ men, is now

offered -as: binding on alle the defendants en gall.

eounts: . ; eae

The Court: 1 oil allow it as a preliminary

anestion. | a eee thse

Mr. Hippeli% It 3 is. within the pertod of the éon-

“spiracy, too, your Honor. 7 “IN

Mr. Faulkner: I did not make ‘any objeetiog, on 3

‘the conspir ae y count, Mr. Hippeli.. I objected to a :

- conversation in [69] September, 1944, whieh has

for its purpose the binding of other defend; ints Og!

a straight offense ¢ harged in May, 1944, ainlyss they

~. Were present at that conyers ation. Cece, y

The Court: It is Himited at this: time * the

de ecumes that he had the conversation cat

} . Tippeli: Q. Will voertoll us the substance

ee conve sation, Doctor, please? : |

a 1} was a disen ussien between the quatty (of

;

- ; -@ .

« . *. ad 2 ‘

: 214 Nye & Nissen and A, Moncharsh.

(Testimony of Robert B. Mericle. ) et ;

Grade A and Grade B eggs,.and ir “the dise USSiOi

& the&pecific ‘ation Was checked as to what Was inter.

preted as a Grade A egg and what the different

quality factors were’ as they were written in thie

specification. o ia

~Q. Did Mr. Mone harsh refer to Exhibit 21?

AL. Yes: we. ae &

— Q. Did Mr. Qoddard? Be” FB

Coe Q. How did they refer to it? ©... >

A. - Ass the specification, copies of the specitiea- ’

im 2 OE Te eins

, Q. Ww hat did they: saby about. it? ae eens

terior quality of snell eggs.

-- Q. Were they referring to that in interpreting

the interior suai ft the eggs? A. Yes——°-

Mr. Hippeli: @At- this time, your Honor, I -will

—re-offer Exhibit 21 for Identification in evidence, in

. the first place as to the. defendant’ Nve & Nissen,

the corporation,. the de fendants Abraham ae

charsh and Ruby Goddard, and secondly I offer

, in evidence as agaist al! the defe nalants ests

of the fact that these standards are an.official regu-

lation of the [70] Department of Agric ulture, of.

which the Court will take judicial notice. They are

a matter of Jaw of whic: the defendants are pre-

~ } basi to have knowledge.

“In that. regard I have a. citation # a Case. if

your Tlonor cares, TP will read itfot you. It is to

the effect that: the: ‘regulations of the Department

“of “Agriculture, the rules ‘and. regulations, 4 mat-

» Z ad

A. Ht was a matter of inte pretation on thy ine

————E

Vs, United sit hc than merica eo San

oa Testimony of Robert B. Me ‘rele. )

‘ters cof which the Court! takes judicial notier. |

; vs nit.that the ‘vy oare riyitte rs of haw ‘whielt therde-

fehdants areepresumed to have knowledge of.

cen Mr. Faulkner: Your Honor, I think [ean B elear

fliis wip by a question of this Withess. :

Q. Doctor, “isn’t it a fact that in 4942, 1938,

1M, 19-44 and 1945 that the Department of Agri-

en liane mailed to people in. the poultry and the egg

business! certain official doeiuments rel; ting to the

stand: rds of ggs? A. Yes. : .

. .Q. And they did it in 1948 anid 1944. isti’t that

ao 2. Sane. ae fate : i j

Q.. Exhibit No. 21 is ‘not one of those doc uments, -

Mitts. A eae: ts |

-Q. Now, Dr. Meriele, isn’t this document .that.

you sent to. Nye’ &. Nissen relating to grades of

eges?\ Isn't that what you sent te companies like

> Ny ve & Nissen? Yes, or no, ple ase? A. 4¥es.

document? . hie Mae as

Mr. Hippeli: May we identify that document,

please, for the record ? (71 tae 2

Mr. Faulkner: Defendant's’ Exhibit’ A, “your

Hontey We will tak} the letters. = 0.

Mr. Mippeli: : Q. ead What. is on the ‘top

that document,’ Doctor? : * : :

AL “Pontative, U.S. Standstde and Weight.

of”:

: Classes for ‘onsumer Grades of Shell Eggs.’

rey? And that is the document that vou re res

forring to, Doctor? +

i ce ial _ —@ ae 3 ¥ . + 7 7

Faulkner: Tat is the document: Nve & .

-Q. Isn't that what N¢e & Nissen acts, on that——

wef Hh ; er aes r

2 Nyc & Nissen and A. Moncharsh

_ (Testimony of Robert B. Meriecle.)” ie

‘ ” Nissen had. "Fhey “did not have this document, .

Mr. Hippeli. >. Oi ree os ee ee

ea Mr. ‘Py ‘att: L object to that. statement of counsel. -

| The evidence. Is. already that they did have this

oe document? Mens ae +. ; ; es

a. Taulkner: ees statement, your

Honor. | | |

un . ‘Tsu’ t that the: doc sament that the ecarasctt

; business, such as Nye & Nissen?

of “Agriculture sends to companies Tike Nye Ke

-.in September of 194427. A. Yes, sir. S

sends to the producer.or the man engaged in the .

AL Pardon me 2, 3 : |

Ailing To eiane the doenment. that ‘the Department

Nisse nt A. - It is one of them.

Q.. Did 1 understand you to. say that you saw

that document in_the. possessgorl of: Mi Mone harsh e

7 Q. That -document. came from Mp _Mippeti

office; front your. office, didn’t it? a

Seas Not from’ my office. “ Joe ee

"Q.. It came from. Mr. Hippeli, didn't it?”

‘A. Yes. . i‘. 2 | . ; . | ; co

—Q.. Then vou. did. not see that doeument in, Mr.

wr ‘ _ ae sn Ps ©

Monecharsh’s possesion, did vou? « — - _%

A. Technically not that particular document.

Q.¢ Did vou read the document that vou saw in-

this possession? 9. AL Yes. | Sper ieee

-Q. You read it. Nil of it? ; ae a

i The particular part that we were interested |

int or concerned in at the’time. | |

Q. Isn"t that. the document that you read}:

. United States: ‘of Americia | ‘217

(‘Testimony of Rober 1 RB. Meric le.) ae

AL: No. ake fe Wa pee

~Q. * Ave yrow certain of that? A:.— Yes: ,

~ Mr. Mippeli: May I siegest that. this document

Mr’ Faulkner has in his hand be marked “for iden-

tification... ba at

The Court > It may be admitted and marked.

(The document in question was tharked De-

| fendants’ Exhibit A for tdentifieation.)

Mr OF aulkner : We renew our objection, your

Honor, to Exhibit 21." he Ese

—— an

——

The Court-— jeerton Will he overruled.

_———__——

t 5‘

~ -

Mr. Failkner: : Exée ‘ption. |

Mr. Hippeli: We offer E xhibit 21 into evidence. |

Mr. Faulkner: Your Honor, “Mr. Sullivan ealls

my attention to the f ract that’ in-the legal argument

adgressed to your ‘Honor by Mr. “Hippeli he -re-

een > o

ferred to that doe cument _as-a-regntation. “Tt is not

to afl doe :

“a vegulation, It does not purport té he a regula-

tivar, i is an instruction to official gre aders and it

is not a regui: ition of the Departinent- -of Agricul-

“~~ __ tive that comes within. the meaning of that case. I

Imagine, your Honor, -there is not 2 seintifla of

difference hetween the’ paper we preduced so far as .

egg standards are concerned and this Fcument.

My-point [73] is that this docuinent does not bind

Us, your Honor. Tt does not purpert tea. Git is: not’

supposed to. And itis not a regulation. 3% i

Mr, Wippeli: Mr. Fanlkner has stated that this.

Is merely a directive, an. inter. departmental direc-

tive. T maintain: that the- doc aimbnt shows an its

face that it is the Department ‘of: Agriculture's

. “ . . : "Oe y

~ gated.” 3 ”

218 ; Nye d& Nissen’ ‘avid. Ay Soncharsh

(‘Testimony of Robert B. Mericle.)

statement of what the standards for an individual

she Cag shall be, and” the pre amble cof the dovu-

ment, itself—~nely Toband a eppy to vour Honors-

the title on the very: top says, ** United States Sysiath

ard for Quality for Individual Shel Kegs.””) The.

next a is, “Order of I -yomulgation of Stand.

ards.’’. Atid then it continues, “By virtue: of

thority vi sted in the See retary of Agriculture Be ‘

eee stafate= and the last sentence: thereat

is, “These standards ‘shall supersede all standards

2 individial quality of shell eggs previously

promulgated under such authority.”? 4 ; ao

Mr. Faulkner: -You do not read. this. It ‘says, .

“The following standards are promulgated as offi-

| cial United States Standards for quality. of. in-

dividual shell eggs; ‘to be employed for the grading

and certification, of shell eggs hy official graders of

the United States Department .of Agriculture and

to be in. foree and in efi ect on January 2, 1943, and

thereafter, ‘as Congress: shall provide-the necessary

authority. therefor, unless amendéd. or superseded

_by —" hereinafter prescribed ard; promn! -

.-.

They are standards to be employed by offic ral

graders. Fhe othe? document, vour Honor, ts what

Nye & Nissen and thee £7 4] other firms rec

Mr. Li ippeli: The wifes Nias . sevlifiad. they: are

the staiidards of the Departingnt of Agriculture.

They ate the stat dards in Laced Nance with Which.

the United States Department of Agri ie ulture grad- 3

ers grade a particular individual ere. They are.

saecrsargemne—~- h Rene oo te

ae Us. v nited States of Amer rica : 219-°

( Testimony ot Robert B. Meric le. )

the Standardg in accordance w ith which sabes were...

made, the w Press has, testified, to the War Shipping’

‘\Adninistration, the Coast Guard, and the Navy.

They were the standards. in iccordance “wil whieh —

, these sales were. tested ly Dr. Meri¢ Ie, “hims self, the

United States. Department of Agricultie inspee- aes

tors, under his service. * We have not produced -our

& whole case here, but in the indict; ut, itself, the

| charge against the ‘defendants is. that’ the: Vv were” :

. defeating this. inspection service. - The” Inspec tion

-— service ‘are inspecting in accordance with these ”:

standjirds. _ Furthermore, \ the indictment in the. ©

_. substantive: counts’ charges that. the defeddants ‘e/ *

themsclyés, were selling a-medium A egg to ‘the

. United: States. ue 3 = s

It will, be further brought’ out, frort the witness

that this medium A—the: A referred to is. the AU.

referred to on this chart. 'T he A referred. ois the”

-. ‘grade of. ege which is. defined in the standards t

that are before the court how. At the present time

I he lieve Mr. ‘aulkner*ha’s brought “ont. from: the-.

Witness that Exhibit 21 was mailed te the defend-

ants. Tt’ Was seen in their présence, (It. was dis-*

cussed. with the ‘m down there. And the witness has « -

? further shown that those are [7 5] the standards: of -

‘the United States Department of Agriculture. The

Governmeént therefore renews. its -offer.

The € ourt: The Court is new: prepared to rule.

Ww hat is he fore the court?

eS : Mr. Hippedi: The admissibility of US. Exhibit

21 inte evidence. : a :

\ = ‘ ; : a

*, are are the regilations. ea eae

a4 ee . : = a Ce a ee

( (Testimony of. rt B: Mericle.) Ree cases

Whe-Ceart It may~be admitted and aiarked.

The objection will .. overruled. ee

Mr. Faulkner: Exception. “a8 ie ae

— a an 24 —for—Feteiitifie ation Was |

ie therenpon, regeived it ev ide nee.)

Mr: Hippel: Q. tioetae, 1 will ask you gen-

erally what are the U nited States: grades of “egys ?.

‘Mr. Fa nulkene r: W «object: fy that, your Honor,

bacaien this document aE in eyidenge speaks —

for itself and that determines it. “This document ©

dete mines what the frades are nude iy the ruling of *-

the eourt. as i a

_. The Court: “The only way. the? jury will be. able

. to knew that ts to develop thh faets.:

Mr. Faulkner: Read it te them. . _

The’ Court: Read it to thetn if you wish,

“Mr. Hippeli: sThe 1 vay. the Government desires

to ‘present this, your Honor, is. ‘to have the | witness,

in reading the chart to the jury. to explain to-.the .

ejury what is meant by that.. ”

The Court : “Very. well, proceed. [76]. ..

Mere Hippel: Q. My question, then, Doctor, is

what are the a: S. erat des of. eges? | ae

Mr. Faulkner: We object to that. on ihe grounds

_ the. best evidence of what the U, 3 .g rades 6f eggs.

The °C ‘ourt : | The sabjection may be“overruled.

. You may answer.

Ass “Phe gr ades fov individu: Laren eggs are eX-

Wa rined in the piettive es on the chart, hich, as you S:

e 4: es

‘4

, : .

wa *, 3 . e

jury may each be. handed a card.

the “shell, ‘the air cell, the volk, and the w hite.

ous quality factors’ go ty) make-up the respective

grades, [77] Let ‘us cover the U- Ss. Grades AA,

U idler the shell. requirements vou Will note it says, ——

BO lean; unbreken;: normal.” That means that the,

shell is clean;-the shell is unbroken, there are no

. : ¢

e, x * am «

P . a,

ere G “ht é

Ania 2 on, ee

fo oe veh nited States of America = —-“9or

( igetimony of Robert B. Meric le’) ee. a

will see; ‘are U. S. Grade AA, U.S. Grade Ay AUS.

Grade k, and U. S: Creade Cu. 58

“Mr. Hippe i: AW. ith: your Honor’ spermnission, F:

have: several. of these cats’ here, and | T would be

. pleased to. hand’ one to the Court so Tre may’ follow |

~ the explanation, and there Is sufficient here SU The

My. ‘Baulkner We objeat to that. as a detivon- fe [3

stration, your Honor. Ate is het the propor method

of presenting lease. ,

The Court: Propeed. | ass “one to the jury,

Mr. Faulkner: | " Exeption.- i EL

Mr. Hippe li: higpe have engugh, your Honor.

“The Witness: You. will nate in chéecking the chart ¢

that, “as I inentionéd: previously, theye are four

Se?

sided: U, S. Grade AA, ET. S. Grade ASULS.

Grade Bo and U. Ss. Grade C. aT here: are “various

qualities, as you will notice on. “the left. which state

eracks, no «hee ‘ks,. and that the shell is normal, that

is, normak in. shave, And: the picture, here, shows *

“What is ineant by normal, normal egg sh: (pes

Q, Doc ‘Sit ‘show atiything, dlse but cle un Whi it

are the othe ay \offic ial

A ae ; ; Ri 5 e “4 :

“AL We have different classifications, for dirty:

shelly, Which are classified separately, as you: will

. Puri: ° ; . 7 ‘ a Pin b Ply

% ee ; Arey Wheat EMG oe A

* >. * te ° , °

ra - . , - . ; z : ty 3 t

Vari-

+ = + vw o 2

—

. *- J ,; r

a Nye. dé wal ses Moncharsh . o:

( Testimony of Robert Bt Meric le. iy

_ note dew in the lower ‘left- hand ¢orner: in smal!

‘type, veferred to prey iously. ‘There-is 1. S. light

dirty, and U.S. dirty. That is where-the-shell_ has

‘beeome stdined or dirty with either loase, adhering

> dirt, or in otherleases small stains; or in cases where

‘there are large stains om the eug shell, or, in cases

where, there is sufficient adhering dirt that it, covers

“practically the entire shell.” These are classified

in either U.S. ight dirty or dirties., ;

Q. Are theré any classifications of unbroken

shell? | og ' |

» A. Yes; a classification also in the note of U. S

cheeks and U.S. leakers. The U, 8S. cheek is “an

egg. where the shell, itself, has been cracked but ~

_ the shell membrane inside the shell lining it has not»

heen broken. | It is just a erack in the continuity of -

the shell, A leaker As the same egg with a cracked

shell, except. the inner shell membrane has “been

cracked-and the contents are free to exude or le ak

from [78] the egg. ; ; )

_ Checking now your. U. S. grade-AA, -the air cell,

if states the ‘air’ cell must be .one- -eighth ineh in

depth, regtlar, or slightly wavy.’ Now, the air cell

is this little light-colordd space at the top ‘of the ;

egg. You,can see the sizeof. it t and. you can see, the

dépth of it The maxirient “depth is one-cigh fh

~ineh. ax: |

‘QO. - Daetor, i> explaining. the, volks fnd.air cells -

possibly this chart may. be of assist: nce to you,

J-would like. to have a chart entitled, Eggs, re- |

ain grades and uges”’ marked for. identifieation,

Pe oi nited Statesebf America — or}

(Testimo vof Robert B. Meric le. )

C 1e ¢ document w as. marked tv. ° xhithit 24

for. Identification. ) i

“- Faulkner: 1 should like’ the court to see this.

. document when the Goy ernment offers it in evidetice, -

“Mr. Hippeli: _ Now, will vou continue? You were

"describing the aix cell to the. jury.

*° . Mr. Faulkner: dust’ ai ‘minute. ‘ We ‘Ghjeet - te SS

the witness ising something that Was not prepared *

by him or under his direction. ‘Phis is Re a L

frepared by the Poultry and Egg. National Board

bf the C onsumers Association..

“Mr, ‘Hippeli: Q. Does 23, the last ege chart.

handed you,*depict the grade of eggs in conformity

tothe United States standards. for individual, Shell

eggs ? pe : So Re ‘ 4 i

Mr. Faulkner: We object to’ that as calling for

the opinion [79] and conclusion of the witness.

» * The Court: If he knows he mis answer. —

10 ae Se 7 : ee

| Mr. Faulkner? Exception. : or, es

Mi Hippelis JQ. Have vou “‘usfd ‘this chart in-

explinning the gr ades of eggs to veur er: aders and |

inspectors? a es yeas :

Mr Faulkner: We object te that-as et binding

on the defendants. The question before this cou rf

is what the industry uses, how they grade eggs, net.”

how actlass | room of ‘inspectors are instructed, your»

‘Boner: «= Fa ee |

The € Ouegt : Y on ave limiting this to the, Inspic-

fogs and they are not. hound.

224 - N wert Nissen and lA “Moncharsh

\ & C Vestinveny of Robert. B: Merie Je.) ;

Mt Miyspeli:. ~My next question is, as Mr. Faulk:

e. Her hi is suggeste id. does Uils pertain to: the didustr vi

| Thre Conrt: Proceed, :

A.- Yes, sir. | 2

Mr. Patlkner: Eixce coon,

Mr. Hippe Hi: Q. Have’ vou used this egg chart

in explain oie the eharacter and GB lity of CBE to.

ee industry ? Xk

Mp, Ba ulkaners Your Honor, Nve'R'Niasén Com:

pany ites deen in the business laahy years longer

an this gentleman. Did Te ever talk - to thei

oe ‘abou! it? The¥ ean’t bind Nye & Nissen and the

defendants by some leetures. ; .

Mr. Hippel: Tam merely going to use’ this for

the purpese of demonstrating to the jury the grades

of eggs. [80] _-, “eS

Mr. Faulkner: I object to a trialeby demonstra-

“tion, if the Court please. That is,.in that sense it

is not-evidence, ie :

Mr. Hippeli: I+ am- not offering. it in evidence.

: I am offering it to the Witness. to use for the’ pur-

pose of demonstrating the grades of eggs and what:

appears on this chart he says confor xt the grades

sot fi gh | by, the U mited, States De catb at of Agri-

Pike ree

° oO , . - .

we -°Mr. Kantonea “My. piderstamding of the role at

_@ ‘ : .

: law asy your Tremor, yott-are not to tse any doci-

on , in) ae H Dare Oe Se

it To pefres thie Fe eoitoet ge wi: the Wittpess ‘itl.

or eantrol ; ri !

e-.@ ;

ee. |

thie stag unless if was prepared amden tis divvetion |

® .

\ ae

vs. United: States of America, .° Fp:

iestineshy of Robert 5. Mericle. ) Ki

a» ¢: Fhe - Court: Tints’ & a docnment that: was pre-

pared in Chie: age, chante Sipe ace ae :

wieage |? Hippeli: It. is i private pitblie ation but it

contains the’ grades to conform fo the & inite od States

“grades. It is a convenient chart, ora

The Courts Q. cls that ‘x fact?

. > Ves: yee" , < ow ae : 2

The ( lourt : Pracud shal

Mr. Faulkner: Exceptions your “Honor, «It

would be like the withess testifying as an expert

and reading his answe rs from a text-book.

” The Court: It goes to the: weight of the testi-.

mony. T will allow the Witness to ‘determine that

Mr. Faulkner: - Exception. 1. abject to the an

ness testifving [81] from any document that has:

not been received in evidenée aind there is no foun-

dation for. it going in evidence. |

Me. ,Hippeli: QQ. Doctor, ven were cxplaining

the air cell to the jurg: © 245 + Oo, @:

r - ”.

May Faulkner: . Just a moment. I object to a.

Withess using: any " doe ‘ument that will aud him. in.

testifying that is trot in evidence in this case.

“Phe Court:. At this time let us confine ourselves

to this. chart. \ Proceed. Moar Skt Ae |

. The Witness: (R ‘eferr ing to ‘Xe S. Exinbit,.22) :

We were discussing the ar cell: ’ Brief mention was. °

made that the air cell must be one-eighth inch in.

— depth, must be regtilar or slightly wavy. ‘The air.

< Well, as You wilt note, is the top of the egg, the large

end whieh is up. Reference is made to the yelk.

*The outline is siightly defines free fran defects or

“4 or

- 226° .- N ye & tenew and ; A, Moncharsh 7

(T estimony of Robert Meric aaa ee

——

blemishes, aw he yolk, i as Von will : see, Is right mm, the -

vonter of the ere, There is no ‘yolk outlined he-

* tween the outside of the volk and the white. You

ceanhot see the tik outline qd. The white is clear

ai ad finn, as vou will note from, the pieture of the

OLE, hye we. The white is ‘clear amd fig. That will

he noted on. its: broken- ipa appearance. The egg.

when it ts broken oma flatdurface, invege of double

ege quality. will Nave, an getnding *yolk The

volk will be iu the: center of the thick white. - The

white of the egg is divided into two parts. / The re is

a thick whitesand [82] a thin white. ‘The yolk is in

the center of the thick white, well centered, and it

is heid in an upstanding, in more of a cup fashion. .

You take a cross section and’ Nook at the yolk on a

horizontal - basis and: you. "Teadily see the white ad-

hering up from the side of the volk and k@e ping it’

~smail and in the thick white. The white, as it Says’

here, should be clear and firm. That - covers the.

individual quahty-factors of the double egg. -

The Grade A, vou will note, has the sane shel}

requirements as_ the A, that is, it must be. clean,

unbroken, and normal. . As. we previously men-

tioned, in eggs with light, dirty, or dirty, ‘shells are

graded separately, classified separately. The air

eel here shows two-eighths of Ancineh in eee

You will note here>an enlarging ofgthe air cell ;

the top. You see the 1 maximum: depth of the. uy

eel! there 1s two-cighths’ of an ineh. The yolk is

outlined, farrly well define’, Ver ean abost ee

a peneill and draw antoutliceereumd the wali Ph

- vs. United States of America — 227

ae ; ey is e * 3 . : ‘ te

(Testimony of Robert B. Mericle: | mg @

Was the way we designate the different, quality tae

. a. Ta

tors here hetween the grade A and the graidé@ AA. -

The. white must be clear and reasonably, rn; You —

ean se C there is a breakdown in the white. there.

if vou. took a. CPOSS, section of this eve vou wold

see the yolk is not as upstanding as i is.in the AA,

The thick. white Is not as much around the side of

the volk as it is in the AA, Brike nn out on a flat

surface, vou can see. the thic k white larger than if

will [83] be in the previous ong discussed.

"The Grade-B. Vou will note here it is eo same,

“as far as the she IL.is coneeriied, with. reference to

~ leantinkess, The Grade Bumist be a clean egy. The

shell rust be unbroken. However, they do permit

slightly “bnormal ‘shells, a slight abnormality there

with reference to shape. ‘Maybe a slight ‘ridge y

around it or a.slight roughness, Which is permitted

~—slight abnormality. The air cell there again; vou

will note, has had another. one-eighth shrinkage

added to it, whieh makes a three-eights inch shrink-

-aze in the air cell. It is very small. It may be free,

That isy-at times’ this air cell is completely loose °

from the egg and may’ move from «rie ene to, the |

other, depending.on which end of the egg vis held ©

Upright’: As to,the volk, the or thine is well de fied,

and may show de ‘finite but not serious defects, He re

Vou ean readily see the volk. it OU ean. take A peneil

and draw the ex: et outline of the volk. ‘Aid it rinyy

-shaw-de ‘finite Init not seyious defects. - Mose are:

defects: whieh will appear ; con the surface ef the

volk, whieh ean he de ‘tocte “(l hefore the candle i in the

228 “Nye d= Ni TSSEN and 7 Moncharsh

Cc Celine of Robert B. Mevie Ss eee Base

process of eandling. The" white may be slighthy:

eiveak, “There, agaAIN, Von will note that when this

egg is hroken ona flat sur: née the white. will spread

out consider rably more than it will in the Grade AA,

You will see the same ¥ariation nates the rade

Band. the erade A aassyor would see he of yeen thre

grade A and the grade AA with referenee to the

white, -As to the actual beerkdown of the s white,

you [84] liave noticed’ when you have broken a

rade B° egg into a Skillet, when they ‘are poached

they will run to the side of the, skillet, whe Teas i

the AA. the thiek white will hold it in one pl ace,

. With respect to Grade €, ‘the same shell require

ment is there. It must ‘he clear’ and unbroken. It

may be abnormal. ‘By. almormal, there are the

; exceptionally long eggs, the eggs that do not cone *

form to The fermi shape as we see here. Maybé

it, reaches around the center, maybe reaches around

the small end—different: abnormalities, in the shell

shape that you see. As to the air cell, vou will note

- here the egg has shrunk. There has been evapora-

tion from the egg. Yon will notice the air cell here-

is continually inereasing.in size as the moisture

®%vaporates from the egg. Tt may he over three-

eighths of an ineh in depth. It may be hibhjjee.

Ther, again, your air cell Way he broken dow? inte -

five or six full etr eells. orlanyv. number, which will]

“he individual ae ak ~The volk: Tlie volk maw be

plainly visible, Tt may appear dark. You see the ’

darkness on hete that it shows? It may. show

visible germ development, but not to the extent

mr bf wited Statis of ‘Ame rice 7 999

icons of Robe at B. Me ele.) | &.

hefore it de velops Gur enough to be at ‘the blood ring

it is clear, but it may be weak and watery. That

Is, when the: ere IS broken out, the braken-out ‘ap-

pearance, P85] vou will see the v hite will have’ a

tendeney to spread. almost ‘in the order of Water

same instance will be-Hat and spread considerably:

on Grade AA, A, B and €,

— cussion : grades, we. have set up CLS. Light Dirty

-and U.S. Dirty. . That takes in: conditions pertain-

Ing. to ha shell ‘lone. ‘That: js, small stains, such

dirty ; the eggs where more than one-cighth of the

shel] surface is covered with stains, havjug large

parcels of dirt adhering and such, are classified as

Dirties. They, ire graded and packed separately,

Mr. Hippeli Q.. 1 suggest that you explain

“boiled egg. . ; : 4 ‘

boil each of the eggs as shown here and take a cioss

hat the volk in the AA.is well centered in the egg.

‘here is an even layer of white around the surface,

first two O1 r three dave. . It Is stl i nm edthte eer

-. stage. And the white; The white here may be elenr

A.- Ina hardboiled ak if vou. take and hard-

section through the center of the egg. yor with note.

where it shows any blood ring. at the Dlood ring

stage. But vou will get a gerin devedgpinenit mothe

When it is poured from the enp.° The velk in the °

That, Hrietly, eovers the individual grades -of eges: -

“As: [° mentioned briefly here earlier in the dis-

as those where less than one-eighth of the shell’s”

surface is affecte d are graded and classed as light»

how the U.S. grades-of eggs are manifest in a hi ard-.

@-. . \

« .

230 | N yod Nise n and A, Mosk harsh, |

2(Testimony of Robert Lb. Meticl on Mgeneae

and that shows: ‘the thick white held the volk in a

center, The volk Was well centered. And the re

was thick white to hold. it in Mhat position.

Q. What about. the air “ell in that egg? .

cy A. The air cell would be small. It would be one-

eighth of an. inch or less. That [86] ‘an be readily

seen when the egg is opened as to the Gopi of-air

- cell. On the Gr Rae Ame ? 7

Mr. ‘aulkner: There is no. question, your Honor.

Mr. Hippe li: .There is. T have asked the Witness

to explain how the U.S. grades of eggs are mani-

fested in. hardboiled eggs. - a

Mr. Faulkner You asked him’ a “question about

a hardboiled egg and he gave the answer. I submit»

there is no question pending before the court.

he Court: Read the question. ,

aast t question read by the reporter.)

The Cou:

Mr. F

| 1 Faulk \

that qnestion.*

The Court: Q.° Did you?

Y ou may’ answer,,

- He has comple ted his answer tir

-A. Yes. eT aes |

Mr. Hippeli: Q. How is U.S! Grade C. for

eXa mple, —marmfested in a. hardhoiled. egg?

®. .

A. The eross section a U.S. Grade © will show

; be , ae

yolk. over .te one side, qnality very low with no _

ss section the volk will - be over

“white. On a @

— axe “one beca There will, be cone

whoa and very little or no whité on the: a Ke

to show that the volk. is not well ce nter ‘ed, and the

" vs. United States of America 231

(' sisepns! of Robert bs. Meric ‘le.

White o the eége had broken ‘down to the extent’:

where reine very little or ne thick white in the

“Grade [87] CT and. that the white was. weak “and

watery at the time we hardboiled’ that.

a Are there any types pf eges avhic hi are of neo

United States gerade? °. A, Yes. mnie

Q. What are they? - A. Loss, inedibles.

-Q. How is loss distinguished from inedibles?

What do. vou mean by loss? .

A. Loss are eggs whic h would he classified

inedible *Weiheae ees Ree ree om mee

QQ: What. eggs: are inedible ?,

A. Various eggs: which are ine ible, which, con-

sist of. black rots—— | pp ete ha oy

Mr. Faulkner: Just a moment, Mn. Witness.

The question has. been asked, what eggs are in-

edible. Is that supposed to be under. the standards

laid down by the Government, or Abe witness’ own ;

opinion? There are so many eggs. * The eg ges that.

- have already. been consumed are inedible, hecause —

; , Q

they no longer exist.

Mr Hippeli: -Q. Does the [nited States De-

partment oof Agriculture define a grade y “No

gr ade’ i. “A. Yes. ever aes ,

Q. What is it? 2 ce

A, Any gr ide Of eges which contain oxeessive |

anionnt of Joss are. egyes of Wy grade, : -

q’ Does the U nited State Departine nt of Agri-

culture Standards define loss? ee

Mr. Faulkner: We object. to those general ques-

fons,” Your? Honor. What. standard? - Tn other

which are either

232 N ye ad: Nissen and A. Moncharsh. .

_ (Testimony of Robert B. Mericle. )

words, if it is before the court and he is testifying,

what the document. is, We know it [88] has some

semblance of bei ing official. But if it Is somé*other

regulation that is ‘brought parene the court, is speaks

for itself.

The Court: Read the question.

(Question read. )

. .

& . s

The Court: The objection willbe overruled. Hé

‘may answer. one Oa aes :

~ "3 el

Mr--Fanlkner: , Exception. |

as Yes. ee ai

Mr. Hippeli: Q. What is that definition, please?

“Mr. Faulkner: We object to it unless it was in

existence during the period of. the indictment, vour

Honor. iin

Mr. Hippelt: ‘Q: I direct vour attention to

United States Exhibit No. 21, Ttem 39,

Mr. F aulkner : W ¢ object to that ow the gr ound .

‘the document. speaks for itself.

The Court: The objection’ will be overruled.’

Mr. Faulkner: Exception. : .

A. Item 35 States: “Loss: Eggs that. are in-

edible, smashed, contaminated, or containing bloody

White, large blood spots, or large and ungghtly

"meat — spots or other extraneous and fore eign ma- -

ter are classed as loss,’ 7

Mr. Hippeli:. Q. What are bicody whites?

A. Whites whieh contain blood. - Ther re is blood

diffused through the white. of tee egg. |

Q. What are large hlood spots ?._ = |

A. ‘Large blood spots are large clots of blood

[89] -

_ are defined in the regulation. — ‘*

vx’ United States of America er

one ie . ov: - tet aN a

cl GSTINONY of Robert h. Mericle. }

Mr. Faulkner: - 1 object te this chiss. of exdiitia-

tin, your Honor. Tere is a document that defines

evegy tern. Now, whieh is tMeuide the jury? Phe .

sie as ‘of these terns ie thie regiketions or the

withess’ testimortiy / In other words, ther eo)

a term.she has defingyl that is not defined ‘in, the

regulations. We are not hound by the witness’

‘definition of terms when every onie of therh is de-

fined in'a doeuntent veur Honor has. Aecopted i

evidenee—every one of those terms. .«

The. Court: «The objection: will be overruled,

Proceed. ‘ ee

Mr. Faulkner: Exception.

° 7 ,

.-Mr. Hippeli: Q.. What are large blood spots,

4 *,

please? - : ; :

Mr. Faulkner: ° Same objection, your Hone:

Large blood spots are defined and smal blood spots

Mr. Hippeli: - Are they?

The Court: He may answer. Proceed.

The Witness: Large blood clots are. clots that

‘are in the egg at the time of lavi ing, due to x mishap )

or the chickens being frightened or such at the

time the ege is being formed. Thi hlood élot is

laid down 1) the PTOCESS of bg 4 4 formation, 14 1s

In the e eg at the time the shell is put on and conse.’

quently ap pears in the egg he fore the eandle at the

tne of candling.

Mr. Hipelti: i). What are meat spots? foo7,

Mr. Faulkner: Same’ objection, your: Hongr.

e . Me

234 es Nye & Nissen and A, Moneharsh.

¢ Testimony-of. Robert B: Meriele.)

Me at spots are described in -the- regulation, hot by

* witness, ‘

! ee ae

- The Court: He may answer. | :

- ‘Phe Witness: Meat spots are small. blood spots.

which on mie ‘TOSGopic, exdmination are shown to he

real small clots or drops of blood which do not any

longer show the red hemoglobin. :

. Mr. Hippeli: Q. What beat? foreign ‘mater ials

may be in an egg? .- ;

ee ‘Such ‘foreign ° materials as we have. seen.

Reund worms have been: found in eBags at the time.

of candling. |

Q. ‘Directing your. attention: to Item 35 appear:

ng upon. the exhibit containing U.S. Standards for

‘ Individual Shell Eggs, will you explain to the jury

what inedible eggs are, please? no a, ;

Mr. Faulkner: Same objection, your Honor.

The definition of the term is clearly “defined there.

The:Court: You may: read yee

The Witness: “‘Inedible eges: Under the Food,

Dinig & Cosmeties Act eggs ae are filthy, putrid,

decomposed: or otherwise: unfit for food in whole

or.in, part are adulterated. Eggs of the following

deseription are elassed as. inedible: Blaek rots,

white. rots, mixed rots. (addled. eggs), ‘sout eggs,

eggs with greet LW hite, eggs with stuck yolks, moldy

: _ musty eggs, eggs showing blood. rings.”

de that all vou have on that?

. ‘Eggs. containing embryo chicks after ‘or

hevond the blood ring stage, ‘and any eggs that ‘are

filthy, decomposed, or putrid.”” ‘py |

vs. United States of America > 235-3 -

. a 8 : 3 — : ; , : :

(Téstimony of Robert B. Mericle: )

-Q> What are black rots?) ~ ee

£ “Hlark-rots are eges that are decomposed to

the extent that they appear black before the enhdle.

and on gpening have a putrid odor, the contents

are blackish and blac k-in character. %

Q: WwW hat is white rot? . A ay Me cf

“A. W hite yot: isa breakdown of the white Jt the -

eggs, Where there has sheen a “decomposition take

pli ice in the breakdown of the w yite. |

~Q. What are mixe “d rots? ;

| A. Mix€d" pots. of addied eggs | 1S where the

volk membran the membrane that holds tHe solk

ina sac is broken axd this is mixed with the white a

caf the. egg. Call it: either a mixe d-rot or. an aidled

egg... ids 3

‘ Q.. And. a sour eget | |

A: A sour egg-is one in whisls thie.’ white is

broken .down and will smell sour after breaking. ..

Q. Green whites? of seas "

-AY Green whites will appear greenish before the

candle ‘and on breaking will have a.wery definite.

‘greenish characteristic. | : es

Q. W hat about stuck volks? Pe ee ;

A. Stuck yolks are yolks which have stuck fo _

the shell membrane to such an extent that they will:

“Net break Joose w hen the egg 1s twirled hefore the

canidte- ‘ . t..

(). Moldy eggs?

AL Moldy. -eg@s are eggs that have. mold. The

pest Spores hyve penetrated through ° the: shell,

_ &

236 Nye dk Nissen, vee Ae Moncharsh

(Testimony of itobert B. Mericle:) * | ;

through the shell membrane, “tak are 6 grdwing-in-

2 MED Ss ‘side re ege. r : | . ie

- °°. . @. What are musty. egies? .

A. Masty eves are eggs that appear musty on

& the smell, and the smell has penetrated the conte nt

of the 4 SO. thatthe egg t fas

a teristic [92] of must. © 7! |

ee Q. What ‘are eggs ‘showing bload rings? *

and has the ¢harae-

A. Blood rings’ are found in fertile eggs where

‘the temperature has been ‘high enough to ineubate

Cay, aes

‘the eggs and statt the germ to develop. This” wen

| Will develop up ‘to the blood ring stage and, as’a

: ae tule, it is edible up to the blood ring stage, «and

from the blood ring. stage. on it is ruled. as inedible...

ss Q. Now, the next specification. are eggs contain-

ing embryo chickens. ] helieve we know it by that

name. - "> - 5% pe ER cork, Mk

aThe Court: , Tt is time for. adjournment. { vill

ask- those in the court room to remain soated until,

the jury retires. “Keep. in mind the admorttion: of \

the court and: re tum at two o'clock, The jurors may

eo * Ne exeused.\ ae ee ‘ ay Yo

| (Thereupon -a recess was taken until two |

ve § oS o%doek Bm.) [93] Ue Seats

Atte TNOON, Session, 2: 00 © ‘clock p.m.

oe rat: “Tf the. Court please, this is just an

explanation... ‘Phe Government subpenaed the’ cor-

‘poration to protece a \arge number’ of original

- records of the Company; uamely. purchase orders.

Mr. Faulkner tells .me-that the. individual who. was.

\ |

ago and "has gone. Only a few

aaa US. r nited, States of geri ny 937 *

ringing, teat ioe ‘uments was he nfe

“oMe. Faulkner tells me, have heen. round.in the ree-

ords, ‘J shonid like to put this office. ranaeer, S ~

acter of sen ac ‘ly of records that he made. Mik ak’

‘ ner tells ‘me he. will be hack in a little while, in tein

ov fifteen minutes, and | should like, when he comes,

to withdraw the witness who is en the stand and put

him on! briefly for that purpose.

Mr. F aulkner: He Wi as here this me ring. We

thought he would never be reache d.. He came back

at two o*eloe _ypere just assumed “he would not. he

* reached today.

ea Vv ery well.

Mr. Nippeli: - Doctor, you. will resume the stand,

please. *- ;

“Trees le aoe ?

@ REY 6 ry

to : e cf *

J 3 Direct Ex amination (Resumed)

Mr. Hippeli: Qe. Defendants’ “Exhibit A for

Adentitication is a document entitled, ** United

StatesDe partment of Agr ieulture, [4] Food Dis-

tribution Administration, Tent: ative [ . Se Standards

and W eight Classes for Consumer Grades for Shell:

Kuws, “Doctor, this mominig vour: testimony Te-

Yering to lieve rhme ut’s E xhibit. 21, re ‘Terred. to the

cTYS. si ade » tor an individrial eee: ix that correct #

‘a few mome nts

Mese ‘documents, ”

DR. ROBE RT B. MERICLE, ’ Ee Yeaes

<_<,

©.

\238 Ni ye f Nissen and A. Moncharsh

(TestiMonyof Robert B. Mericle. ) : :

Q. ‘Has the Department of Agriculture set forth

standards for classes of Consumer grade eggs!

A. Yes. * ety Ce

‘Q.. Were tl hose standards, issued to you?

A. Yes. - oe dla

Q. * Is a copy oft those standards contained in De-

‘fendants’ Exhibit A for Identification? aa

A. > Ves. . ie . <= ‘

Q.. Do the inspectors of the. United States yee

partment of Agriculture inspeet eggs in and around &

San Francisco Bay area in accordance with those @

Consumer standards. for: classes of, eggs? |

A. They do. “-

Q.. W hen were. those standards: put into effect, ,

please ? Lee, ie :

A. These were put into effect in December, 1942.

Q. ‘Are they still in effect 2. A. Yes.

“Q Have they heen modified? . A. No,

-Q. Have you graded classes of Consumer grade

eggs in accordance with the standards contained in.

Defendants’ Exhibit | A: for Adentifiis

tion ?

A. Pod es.,

(). Have you so grades Gs m and-around the -

San “Francisco: Bay aréa? = s A.s Yoo.

Q.. Have Department of Agriculture iRpectors

under your supervision graded in accordance with:

those standards? [9: a] ;

A. They have. | 3

Q. Have vou Hught those Standards in the egy

_ grading school that you referred ta. in vour testi-

mony ‘this morning? * A. Yes.- *

vs. United States af A merica — 229

9 me pita”

(Te sstimony uf Robe rt B. Merigle. )

(). Have vou had oce asion to grade eges zat ‘the

defendant Nye «& Nissen s plant.in San F rane ines?

A. ‘Yes. SECS eerie oe i E fc :

When have you done this? | o Aas

7A. At various times since F have been Jiveaat r;

in San ‘Francisco since. 1943. Pa

The Court: . Fix the time. ers ee

Mr. Hippeli: He sald sine ey 1943, About wat

time? :. 07: 5, f

A. From the Tne I was assigned to this area

SG in Octoher, 1943 to the present.

().. Durmg that time have-you graded classes of

eggs or eases of eggs in accordance with the stand-

‘ards contained in Defendants’ Exhibit: A? an

ae eee Plaga Se rane.

se Durifig the- “period of. ‘time from, the latter:

part of: 1943. to the present time have you aecor:-

“panied other inspectors of the United States De-

partment of Agriculture in gradirig down at the de-

fehdants’ plaut in San Francisco Oe A. I have:

'« Q. Have, tou seen. those inspectors grade cases

pigeres of eggs in accordance, with the stand: rd

” consumer grades set forth in Defe ndants’ Ex-

hibit “ ee se

. Mr. Faulkner: > We will bject to the form of. the

“cme stion, whether: he saw them do it in accordance

with that. Tt ealls for his opinion and conehision.

- We doesn’ t know the state of mind of the men. foe}

do it.

Mr Hippeli; Yowill reframe’ it. ,

- °

ren ¢

The Court: , The questibn is, did he observe threnm Z

> “

N -f

é 240 » Nye de Nissen and A. a

, cy 6S 4 q ; f

( ‘Testimony df Rebert B. Meric le. ) i

va (). ~ dn 1943, from the | atter part of 1943 to the

prese nit tithe acs vou observed your Inspec tors at

the dele lilaut 's plant in San Francisco grade. Classes

Ler Bom of egys 1M. conforinity to Constimer grades? ey,

Mr, F ‘aubkner: “WwW e will object to that as. cabling g

for can’ opinion and ‘conclusion and not the best’ |

evidence, _ /

‘ae: Court: “In conformity” is objectionable. |

' State what*they did. ame ae te oe ae

es ffippeli: Q.: Ww hat ‘nbondanes did your iv-

spectors Use in grading egos at the. defendant’ s

Dlant?: Poe rw Jara ee aia

ma :

Mr.* Faulkner: Same “objection. The erader,

himsels, is the only one wlio ¢ ‘ould testify: whi it stand-

ard he used when he graded.»

nae _Hippeli: The- witness has testified that he

has been present at the «plant with his inspectors.

that he bas scliooled: the Inspectors, that he has

taught them What the standards are and What stand-

@ ards Shogt be used. na nie 33

ue ee ‘aulkuer: That would be as though.a pro-. &

; ; fessor of Jaw came in and testified. that he saw Mr.

Tinpeli try A CASE in accordance with the rmles and,

resivations and inst rections he. gave biny at law

school. He could. ict testify to that. That is his

ome } nil cone ‘Huston. oe

_Wippeli: (). ‘Did vou ever oliserve your iN

spect ors grade down at Nve & Nisse ri)'s 8 ple Lait in San’

Francisco? ee Yes. oF}. a

Did you dbserve your inspectors place a grad

U nited States of America 241,

( Testimony. of robe at-B. Metic i ‘eral |

ing stamp ona lot of eggs which the V graded i 7 Sarr

Francisco? ~ =. A. I did.

Q. What: eradesdid they place on Hien ot

My. Faulkners We will object to that-until it is

brought withirr the: pevied covered hy the ndiet-

ment. — ‘ | | | aig

The Court: He may state what hexdid at a cer- e,

tai time and place. ates a

Mr. Hippeli: Q. What grade did you, place on

lots of cases which you inspected from 1943: to the

-preserft time ? veel pene

| Mr. Faulkner: We nee ta that. ‘The imdiet-~

nient was returied in April———_. ates he

. Mr. Hippe di: No, June of 1945, ‘S

Mr.’ Faulker: Is that the date of the indictment #

Mr. Hippeli: June 5.

Mr. Pratt:” June 20th. |

ye ’Mr. Faulk her: The conspiracy ended ot the-date

‘of the rendition ef the first indictment.

The Court: W hat date was that?

Mr. Faulkner: April 25. cay ar 2)

Mr. Hippeli: “The first indictment Was in nit

The indictment under which this charge is brought

how was returned in June of 1945. The conspiracy:

+ continued up to the date of the return of the indiet- -

ment, namely, June, 1945. - |

Mr. Be aulkner: We submit the proper date. is

April 2 . the date of the termination of the con-

Spiraey [98] , : ‘

_ Mr, Hippeli: Well, that is not n "i

. Your Honor. |

friol, anyway.

242 Nye d& Nissen and A. Moncharsh

(Testimony of Robert B. Mericle. )

Q. Did you ever stamp cases at Nve & Nissen's

from the latter, part of 1943 to the Ist of April, |

1945? <A: Yes._ sh oe

QQ. What stamp did vou use down there ?

A. The Consiimer erade stangip.

(). What was on the tf face e of that. , tamp ?

“A. “4, 8 Grade AA” or “U. 8, A.?

Q. Isa.U.S. Grade A egg, is that class of U.S

(irade A eyes a-eonstumer grade.clage?

A. Yes. m |

Q. Are the eae ren, of those elasses set forthe:

in Defendants’ Exhibit A? A. They are.

Q. From thie latter part of 1943 to April, 1945,

did you receive a eal from any of the defendants

‘to inspect eves down at the Defendant’s plant ?

‘A. We did... ts

Q. How often? AL Practically daily.

Q. Do you recall a specific request to inspect

that you had received from some of the defendants?

A. 1 receiv ed some, myself, yes.’

Q. Will vou-give us the Approximate date of one

_of those calls? > A, September, 1944, «

Q. Did vow reeeive any in the early oe

1944? Did vou do any grading’ down there in the \

early part of 19447 ee ae

Q. Do vou reeall who asked you to. go dawn and

inspect e; es there?

A. That was Mr. Goddard: [99]

(). Did anv of the other. defendants call vou, to:

go down and inspect eggs at that plant in the early

part.of 1944? — A. They have, yes.

, : aoe.

2 ‘ :- nited States of Aurerica’ ~ 243

( Testimony eg lob it Be Mericle.

Q, Who were they , please ?

A. Mr, Be man or Mr. Mone harsh.

Q). Did Mir. Menges ever call you?

AL Oveasionally. ts 7

= Qo- Subsequent to their calls, would: vou appear

at the plant ? A, . Yes. ar, ————

Q.:. What would they ask “yeu to do when you

appeared-at the plant? _ , |

& AL They would tell us they lad a certain lot of.

eres there that ‘they wanted weraded. They would

‘tell-us the grade of the eggs, and from that we would

‘go ahead and make our grading of ‘the particular

lot which they wished: graded. , |

(). What erade did‘ they mention ? - —

A. They mentioried cither U.S. Grade AA or

U. 8: Grade A. . -:

“Q., Are those Consumer grades ? a

Bs eee ee |

.-Q. Are thiose grades contained in the standards |

sef forth in Defendants’ Exhibit 1, 2 Seer

ont tain tn a ans Monee

Mr. “Hippeli: At this time the Gov ernment offers

Defendants’ Exhibit A in evidence,

The Court: Pardon me?” ;

My. Hippeli: 1 desir\to offer: Defendants’ Ex-

hibit A in evidence. FEXhibit A is the Tentative

US. Standards and Weieht classes for Consume:

Grades for Shell Evvgs as .

Mr. Faulkner: We e have’ no objection, vour

Honor. MAP ye, a

The Court: Admitted and mark a, [160],

"" 244 Nye & Nissen and A. Moncharsh

(Testimony-of Robert B. Mericle. )

The-Clerk: U.S. Exhibit 24 in evidence.

_ (Defendants’ Exhibit A. for Identification

was admitted in evidence and marked U.S,

Exhibit 24.) cane,

Mi Alippeli: —"@. Now, edit you explain what

the classes or C onsumer Grade! A eves are?

oe Mr: Maailhaier: or The document. that

has just heen reeeivetl in evidence deseribes cach

.Of those specifically. Tt is a matter of re ading it ‘

‘Into the record. “The witness | don’ t think sheik |

he permitted to do that. The doc ‘ument speaks for

itself. Tt describes exactly What they are:

Mr. Hippe liz: 1 desire to accommodate tlre court's

‘vonvenience in getting this as‘clear as-I can. T think’

the document is in eyidénce, but he can generally

tell us what a lot of Constimer Grade A eves are.

Mr. Faulkner: Which is to bind the defendants, 2

what the witness says or what. the document says

tliat came from our possession ?—

The Court: Read the question,

(Question read by the reporter. )

“The Court: I will allow it.

Mr. Faulkner: Exception. |

The Court: Overruled. : :

The Witness: The ©. S. Ciuanser Grade AA

consists of 8A pereert of the erade U.S. Grade AN

eggs. Tt is brokén down into units: We speak [101]

of a unit as either one dozen ina dozen carton or a

‘ase of eges, which consists of 30 dozer eggs in a.

particularcease. Fiehty pereent of the eras in this

~ +

: “i a : &

_ Ar. Faulkne Soe . x

q , . United’ States of Ameriga P45

( ‘Testimony of ‘Hobert’ Bb. Meri le de.

partic ‘ular case mustebe of the rade U.S. Grade

AA. In the remaining of those 10 pereent, must he

grade U.S. Grade A and the balance he rede up of

By with a smal toleranee of 5 percent Whic hh will’

take in the human element of candling can be made

up of light dirties, grade C-or Checks. When we

| candle the eves ina partienlar case as to whether

ovnot what might be required as set down in.the

specification=— - “= “ik

Mr. Faulkner: 1 move that answer be stricken

out hecause it does not embrace the requirements of

a U, s. Consumer's Gr ade AA egg, accbrding to

the paper. that ae heen received in evidence.

Mr. ippe ‘li: I belie ‘ve the point as to whic h

Mr. Faulkner:, Just a minute. T made a legal

objection, .. 2°. ae ‘i )

Court: Real. the “legal: objection, Mr.

rter.. as m °

(Record read. ) |

‘The Court: . Tt may or may net. Does it? Do

you Know? * ein. fais er

Fhe Witnes: Yes. oie con:

Nhe Court: Let. the question sii the answer -

Stand.

Mr. Faulkner: Exception. 7 ez

Mr. Hippeli: . &. Does Exhibit ULS. °f ase the

express term 5 percent permissive tolerance, [102]

Doesn't it rather use, So many eggs”? | :

Mr, Pautkner: We object to that. The document |

Speaks for itself, | |

30 dozen. Or you could sav the eges

246 ' Nye a Nissen and A, Mouchacsh

- ==

( Testimony of Robert B. Maric le.)

The Court: Overrule “.

Mx. Faulkner: * Exception.

"The Witness: The tolerance permits 18 eggs per

30 doze ne Tf you will check that with the case vou

will find itis 5 percent.

_@Mr, Hippeli: bi What isa € onsumer Grade. \

egg? ak atk ae : |

oMr. Fanikner: The same ohjection: Phe doen ‘

Re Spe aks for itself. ‘ | |

The Court: Overruled. —

Mr. Faulkner: Exception. | a

The Witness: The’Consumer. Grade A, taking

the one dozen as ‘a unit, or the 30 dozen ease again,

we have 89 percent of the eggs in this 30 dozen case ..

consisting of U_S. Cirade , ‘quality eges: 10-percent

| must consist of quality U.S. Grade B, and the bal-

anee, we have a tolerance in here again of 18 eges per

Mr. Patknes: Is the witness reading?

The Witness: Could be light dirties.

Mr. F aulkner: Is he reading it? :

The Court: “Ate yon reading it, or are vou testi- |

- fying from your own knowledge?

The Witness : b think I was testifviny, was dene

not? [103]. ee pe aaa ote

The Court: Proceed.” | |

Mr. Faulkner: May 1 have the exhibit? |

Mr. Hippeli: Q. You were explaining the per

missive tolerance‘of U, S. Consumer Grade A eggs.

A. The permissive toler ance here is-—again we

have 18 eggs per ease which could he made up of |

J “

-U nited- States of America 247

pe | |

patiaioa. of Robert B. Meric le.)

‘Light Dirties, Craeks, and . 3 of that miay be still

. blood spots. . ; a ae nee

.Q. Will vou explain what the Consumer Grade

Sat: ne Es

A. Consumer Grade 13 is the same, where the

basic 80 pereent: of the-e; gus in the particular case

must be of the grade U.S. Grade B; the balance,

| 10 percent can be of the grade U.S. Grade C and

— in’that we have a tole¥anee again of ——

| . Q. 36 eggs? | ;

A. 36 eggs tolerance for Checks, Light Dirties.

2+ ¢Q. dust what is meant by the Consumer

) Grade CG? cia aes ae 7

| : A.. Consumer Grade C, 80 percent of those: eggs

there, again, must.be of the grade U.S. Grade €

or better. They have the tolerance of 36 éggs. |

| Q Are there any other Consumer grades, Doe-

OEY 6 A Me are tines ;

" ‘Directing your att ention to what is now Gov-

: ‘erument’ sk xhibit 24, the, same: document, you were

referring to, on the bottom part of that I sce the

‘expression, “Weight classes.’’ Your previous testi-

ee Seer ee ee

mony has been directed to grades as distinguished

“froin weights, is that correct?’ A. Right.

Q. Has the United States Department _of Avri-

‘culture established weights for classes of Consumer

F . Grade eggs... ~ A, Yes: [104]. .

(F. Are those weights Inchaded in 1 Government’ s

Exhibit 24? i. They are. - <

Q. Would vou explain the names of: the three

| 248 ‘Nye & Nissen and, A. Moncharsh

. = gpg as ce tnaasian

(Testimony ot Dr. Robert Be Me ve she, ) |

general weight. classes that are used in the splauts. S

.,in and around the San Fraticises Bay area? —

JAL Large, Mediums, and Small a

Q. What are ‘their weights, take’ the net .weight

‘ ; —

of a ease.

A. Net weight per case is 45 pounds oi: the large,

40 pounds on the medium, and 34 pounds on thie

~ small... as ; |

Q. Is there any permissive weight tolerance ?

“A. No. . ig are

Q. Then a case of Medium eggs must’ weigh at

least 40 pounds net, is that correct?

A. That®is correet. Nes

Q. . It cannot ATTEN 39- ponte, tis that right?) = ~— 4

A. That's righ ‘. ; |

*Q. In gr ading a. lot of eggs, you can’t average.

the we ight of cases to establish the weight of a par-

' ticular lot? ene : | | |

Mr. Faulkner: : We. object to that-as calling for.

an opinion and conelusion of the Witness. What

this witness testifies on that subject would not he

binding on any defendant in this case.

T he Court : Read the question.

(Question read by the 1 reporter. )

The Court: © You "may answer, Objection over-

ruled. 4 | pic Ae oon nse tks

Mr. Faulkner: Exeeption. | enact >

The Witiiess: A. No. 9-07

Mr. Hippeli: What is the answer? - ee

ee Rae Na ae ee

Mr. Hippeli: The Government, next offers for

- sige taunensagien donnie eee

BP eee ns

oe nited States of America 249

(Testimony of Dr. Robert B. Meric ile ..)

“ide utifiedtion a doctiment entitled, **U. S. De- [ 10: ae

partinent. of Agriculture, Food: Distribution Ad:

ministration, Tentative UL S. Standards for Pro-

curenvent Grades for Shell Meus,” | offer this for.

identification. ,- :

The Court: It may le admitted and marked.

Mr. Faulkner: Will you Honor indulge me a

moment? |

‘The Court: Yes.

Mr. Faulkner: “We have no objection. to it.

Mr. Hippeli:> Going -into evidence ?

Mr. Faulkner: Going into evidence.

The Court: Let is be admitted and marked in

_. evidence, ; ee \

( | S.. Exhibit 25 for Tdentifieation was

the ‘reupon admitted | in evidence.) + is

Mr. Hippeli: Q.. Government Exhibit 25 in

evidence, Doctor, is a copy of the tentative stand-

_ ards for procurement grades of eggs. You are fam-.

liar. with that, are vou not? ' 7

et ae ee tani

eee | ‘What are “the procure ment. grades ?

Mr. Fanlkner: The same objection, your Honor.

The document ithe for itself.

~The Court!» How many pages of that?) - |

Mr. HWippeli: 1 was limiting this brie fly. your

Toner, 1 just wanted fo establish dw this Witness: |

* that there 1 we re several, rrades, Tt is not TECESSATY,

for me to go through and show what thew all are,

; “heenuse they. confor m. gene ‘rally. te the Consumer

evades that we hy ve Just dise massed. 108]

250 Nye dk Nigse nand A, Moncharsh

(Testimony of Dr. Robert B. Mericle.) ©

. The Court : Very well. | |

“Mr. Hippeliz: Q. Are n't. there a number of pro-;

etirement grades! - A. Four,

Q. Where is the ‘procurement grade -distin--

guished from the Consumer Grade ? pas

Mr. Faulkner: The same objeetign, “The two

dociiments tay be compared, |

Mr. Hippeli: Q. Is a Consumer grade a letter

‘grade? "A. | No—yes.

(). Tho Conshmer grade is: AA, ‘Gvede A; Grade

= BY A.» Yes.

Q. That is Consumer Grade. Is a Procurement.

(irade a Roman numeral grade? = A, It is:

—Q.. With one—— A. LT Il, 111 aid IV.

Q. ULS. Pi ocurement Grade 1, IT, and so forth.

A.. Yes. : |

®. . For what are the progureme nt grades used?

4 ‘A. The procurement grades were issued peAmar- ;

ily for use by the armed forces.

Q. Are sales to the (7. S.- “Army graded in ac-

cordanee with Procurement Grades as distinguished :

from Consumer Gradés? oe |

Mr. Faulkner: W e. object to that. This witness

is employ ed. by the Department of Agriculture, and

the United States Army has a different method of

inspecting eggs than the Department of Agricul-

_ ture. The witness has not qualified: that he: is an

expert in that—— cos

Mr. Hippeli: T have not asked the witners [107] .

to testify to the methods of grading used by ‘the’ |

Oh jection overruled. ho |

_ ee a ee

Grade AN? A. Correct.

us. United States of Ameriva a ee

(Testimony of Dr. Robert B. Mericle. )

United States Army. [ have asked hit the names

of the standards of egg s that-are used In the grad-

ing by the Army. Governmeit S Exhibit No. 25

will show the standards which are used by the Army ;

have lieen set by the United States Department of

Agric ulture. Have they? epee

The Witness: ‘They are,

The Court: ‘The question and answ er will stand.

Mr. Hippeli: Q. ‘LT will.just refer te one grade_

here; Doetor, the Procurement Gradé I. Will you .

read or explain that to the jury, whic RENCE is ‘More

CONVE ment for vou,

A. Procurement Grade I is identical with “the

vrade jugt explained in Consumer Grade eggs. The

original grade consists of 80 percent of the individ-

ual eggs to be of UTS. Grade AA and the balance

to he made up as ‘the tolera ance just just explained

in the Consumer A. . ee aaa

*Q. The individual egg in-4-Procivement Grade

Is graded in accordance with the standards CON-

fained ind’, S. Exhibit 227 uae? . Right.

a! eal But the name of, the lot. that is the dozen or.

the ¢ ase, or the lots of “ases are known as “Pro-

eurement T”’ as distinguished from u. Ss. Consnmer

°O W hat. is a processed eget othe.

A. A processed’ egg is an egg that has been

dipped in an odorless, ‘tasteless mineral oil. 108] |

Q:- What is + the purpose of Lroressing ? sh

\ .

- 252 , Nye: cts Nissen and . _ Mane har xe _

(‘Testimony of. Dr. Robert B. “Meridien: - >, Re

. ie T: Ihe pur pase « of I roe C ssing > for preservas

. tion, to: preserve the egp qualities ura ath ey,

Me, How docs itMreserve anege ? re ha

- It py es the egg qualffies by vreducing

H ve 4g

the moistire waporation from ‘the, egg and thus

enhances the keeping qualities, so tha they are able

to keep eggs in storage and maintain & miei better

‘qfality than hy Keeping the same ide ‘Ntical-ege in

storage Wi hen, it x not proe essed. \

Q. Are ‘vou familiar With the United Stites [de-

partment of Agriculture mechanics of <hefl grading

eres? A. Yes: % o ee Pierre

(). Wére - the same mechanics used under ‘tes - -§

Department of. Agriculture and. also during the

“period you were know nas-the War Food Adminis- .

tration? AL Yes. ie

Q. Will vou explain bric flys what facilities ave:

: used In grading eggs? i ; ' a

A. In grading eggs if is necessary te have ay

candler. In this method: we look at a light the fitin |

will oe us, “Here is a hundred « cases,” ol 150"

eases,”* or “50 eases” which they want graded. We

nay ‘will observe this. lot, the external appear ‘ance: take

- the required number of. samples which we requiny, &.

- for various sized tots. These’ ¢ ‘ases will he takai, z

to the eandling réom for cheek: eradiny ohy: one of

6 our graders, with the U nited States Departme nt of

ee ‘Agriculture. | : rt

Q. What kind of room is that? Ee: % re

A. That is a candting room. It is a darkened

- room w here we go in, we, are in darkness 11097

_— —S — e es

i ee

= us. United States of America. .. - 259

{ ‘Festiniony af Tr. ‘Robert Bo Mertele, )

The room” is usually painted black inside, dad in

‘there have a ¢ wider Wiile h We Use te look at the

interior qualitigs of eae +h shell eeu,

QO. lL hand.vou a candice. Just show it te. the

jury aac it May assis, Voupin your explanation of 7

‘how you work,

3 ©

A, This is pushed up. it. is used With alee ‘tr ivity

| ~ There is an electrie bulb in here. “This is pl: wed in

it enables us to see-the interior quality of the exg,

‘and it shows very similar to the charts whie h Were

entered as Exhibit 2 22 this morning.

‘Q.° W ould: that. assist vou in your explanation ?

am The appearance that you see here of the in-

terior quality of the egg you cap readily see when

-vottaré ina dark roont when the. egg is plac ‘ed be

fore the candle, The sample eggs will he taken into

“an inspec tion booth. . There we will cheek 50 or 100.

eggs, per half cases. We donot check ey ery ede in,

@.. How many eges\ in a ase ? \ A. 360, ,

Q. How are they arr uged ina case? }

, A. They are in there i i fillers: Each filler thas

three dozen eggs in it.’ Ae if see

Q.° What: is.a filler? +e A filler--—

QQ. Start.with a fat. 2 \ |

AL AM flat. is in the bottom of the case, inet. the

size of a-halt case of eggs. bs cat ison the hottomi.

The egg filler comes in then, The filler ‘is the paper

standing on the end, like this; whieh is.¢ t [110] in

partitions t to keep each egg separate 80. alt will, not

a dark room). There Is-a rav of light comes out SO Pe

[

iene

OF,

25-4 Nye & Nisse n and A, Moncharsh:

Hicatimony of Dr. Robert B, Me riche}

touch the other. . 8. That lets the egg heat on the

point, They aré always pa ‘ked with the sm@B oud +

ea In that way we have tive: tillers. - They put

one filler in, Then another flat goes on, like this.

then another filler on sar

other’ flat, anothe r fiker, and anothe r flat. That is done

‘until we have five fillers’on each side of the ease. |

After these. eggs are taken into an, inspection

booth we will check the top laver—we will start

with the: ‘top later‘a running inspection and look-at

the first, second and third laygrs. In. the. next case

“weawill oak at the second, third and fourth layers. .

Inthe next case we will look at the third, fourth,

and fifth lavers. In the next case we will look.at the:

“first, second and: fifth layers, The fifth case we will

look ‘at the first, third, and fifth layers. That way it.

gives us a coniplete eross sectyon of the: eggs in one

= ;

of that, 36 eggs: ‘in it, attic

end of the case. iy i ; > ST eu:

_Q! 1s the here any other eqttipment used in rat

ng or Ww eighing vaur eggs?) +

A. 2 reales, individual egg scales. ° 6 <.- 2

= WwW hat does that indicate? ; .

“AS Tat -indieates the weight of the individual

egys themselves. _ |

~M). Are thére any other se ales?

A. We have scales to test, weigh halfzcases. In

that method we weigh the entire fine fillers with the

fille T's and. flats on a large scale. °

.Q. And after your sample ‘cases ties heen .

graded what is done? | aS

“Mr. F: antkner: We would like that instrume nt -

' - Noa, 96.

ve, United States af: Arniecrica & -2-08)

: e &,

° (Testimony of Dr. Rohe rt B. Merieles)

marked for identifi ‘ation... li was used-in lis testi

, .

manve , et a .

( Thie light in ylestion was marked [ve rend

ants’ Exhibit, 13 for Identification, }

Mr. Hip peli: a. After vou have, graded “the

A * ¢@ ;

euus What’ is done uext? . ay as

A. Mt the time of grading we: will note and write

down. our results of each individual « “ase tafte rowe

ive-through grading that particular case, write -

down the percentage of A’s, the percentage of B's.

“and the tolerance for each individual case,

After we are through~grading our samples, we

total up our columns and see that the lot’ ria the |

requirement for which it was gratled. - t might

have been graded for U. S. Grade i It’

might lave been. graded for U.S. Grade A. It might |

have been graded for U.S. Grade A Medium. W eC

check, add up the total of. columns. to see if it meets.

the vrade. If it meets the’ ‘grade, our grader will

stamp each individual case [112] in the entire dot

with the grade designation on the stamp: 'Phey are

U. S. Grade AA or UL S. Grade A. ie

Mr. Tlippeli: 1 next desire to have marked for: -

identification facsimile copies “of: what purports to

he U hited: States Department of. Agric ‘ulture “grad.

ing stamp. techs? , ars |

(The stamp in. _aqu stion was marked v. s.

- Exhibit No, "26 for Tdentifieation.) _

Mr< Hippeti : Q. I will show you U.S. Exhibit

Do vou recognize that? © Av Edo. |

206 ° Nye cf Nissen and A. Moncharsh

Cle <timoniy of Robert LB. Meric le.)

“OO Whatlis it? ¢ -

AL: It is’a fag simile of the st; ump which the grad-

evs of the U.S; Departinent of Agric ulture se I

ide bit ving products which meet, the official grade e

Z asset ‘down hy the S secretary, F

ay 4)... And vou.made these stamps, did; you not?

‘Xa. That Ns right. Sey ena ae

i Wal vou read or explain to the: Jury just

ae is contained on your stamp, please? |

A. The Wwol dings on the stamp——:.* See enced

_ in Faulkner: Objectipn. your Honor, The

stutp spealss for itself. s ey es

Mr. Hippeli:” We have. before the Court fac

Sinnilé copies of. the stamp yuade by the United

“States De parte nt of Agriculturés The wituess has

testified that he has made these sporitic copies. [-

+ have asked-him to explain to the Jury tha content

of the stam). a aes van . eS

& Mr. F aulkuer :. There is ‘nothing about that thatgy

hens an Oxi anationt TT is as lain. as day. [11 i

rb. Hippeli:. We could exhibit it'to the Jury: or.

let eke rend if to the Jury. ay :

Mr: Fay Ikner: Let the Jury look at it.

Phe C ourt: Y ou may do. hoth so- there is’ no ues:

pte: tiorthout :

pace A Pale We ahject tottis enn what

“the stamp contains, becatise the. stamp spe aks 4 for.

itse Hf Exee ptien, if the ( ‘ourt permits it. |

be Hippeli: Q. That is a facsimile: eopy of

Rpg ty if is noth. <. A.. “That is right,

QQ You pit-it-oMthe sheet Q

® ae A

. - v .

United States of Arve rica, a

(Testimony: of Robe wt Bo Meriecle. )

ft. That is rieht,

GO. Mid you gave it to Ine!

; | :

A. That is right. | oe a)

My. Hippeli: Miiy this be introduced in -evi-

dence ? ts

The Court: at may be admitted and marked,

(The copy of the stamp was received in EVI, *

denee as S. Exhibit No. 26.) | | :

“My Hipype i: May Tthave the pe Mission of are

“Court to pass these samples to the Jury?

Mr. Fantkner: Tiave you two? | Se ee

Mr. Hippel: ek, thea’ are duplic Ales. os)

Abr Ranlkner: You do not Cant. two in ovide ee,

. do you? .

Mr. Hippeli: No, Tw as gong tO pass one to each:

of the rows of jurors to save time. Dame stn :

“Q~ Thege‘are identical, are they net? You have |

i ape ny? AL ‘Fhey are. [114] ) a

ze Exhibit. No, 26 was passed to the 7

a | Se ae

Mr. Stan —Q. Directing your attention © to

US. Exhibit 21, and i h paracne ir to the date on

that stamp, it that An constant. a. a No.

..Q.° How is ‘it -ehanged ? |

A. It is changed daily, -« -, : | ih fa a

Q. What does the date on ‘the sfitnp represent?

AS Represents the date the eges were graded. aI. y

Q. The Exhibit No. 26 has facsimiles of U. |

ray le AA and © S: Grade A. Have von other.”

Stanipis ?. : | 35 a : ees

258 " “Nye & Nissen and A. Moncharsh

( Testimony at Robert B. Meric le.) | a es

A. Yes, we have “U.S. Grade B and U. S,

Cirade C, |

Q.. The only difference Will ‘he instead « of Vour

AA and your: Ay it will he B and € on those several

stamps ? “A. That is rrghr. |

QO.

Where is that stamp placed on those cases

of eve Ps

s after they have been inspected ?

A. |Placed on the ends of the cases.

» e. Is it placed on each case? «AL Yes.

“Q. j/How long has this method of grading heen

used / 1 the United States Department of -Agricul-

ture, to vour knowledge ?

Mr. Faulkner: » We object to that, vour Honor,

‘“fhis method’. Waieh, method ? : , |

Mi. Hippeli: The method which the witness*has

just described. Ps |

The Witness: Since the service was started:

Mr. Hfppeliz| Q. ‘When was that?

A... Thirty vears.

(), Thirty vears ago? A. “Yes. [11 2

2 ay 7 it used at the present time ? > Bs

As Y OS, SEE. eres oe Bie

Q. ‘Is at°used around the San. Mrancisco . Bay

apex? © <A.” It is. ; aie Ss

(). I dict Vou. use it down at the Nve &. Nissen

plant en San Francisco ? A. We did. |

(). Deo vou jhsiriret vour iis pectors tor lise

“dewn there ?

Mr. ah Aner We object too what he instructed

his Inspectors to * onthe ground it would he hear:

say, ; |

IP Yat BAG SET

bt ng?

SE a CP ON NE ee Mo Me gs

. .

e ff, a tiy “e “da:

es us, United States of America. . 359

(Testimony of Robert Be Meriele. ) |

‘

Mr. Hippel: W ithdraw the question.

a. Have: vou ever graded eges at the -Petaluma

"plant of the de Tencant, Xye & Nissen.

A NOK:

QQ. When did the U.S. consumer grades far

classes of shell eggs go into’ effect approximately ?

A>. 1943.. ioe

(QQ. Were evs. Department, of Agriculture

AS a or

grades for classes of shel] Cres int existence | prior,

tothat dat®?2-. A. - ¥es,

Q What were: those standards? ‘Give us the -

hames of them generally. |

«-

‘A. We were using the te rms‘, at Spee ial— a

Mr F aulkner: Just a- moment, ‘if vour Honor

please. The standards speak for the mselves, "The

docyuments establishing ther speak for themsel

They are not in € ourt. They are not in our posses-

sion. , , 55

Mr. Hippeli: ¢1 did not think it Jhecessary to

Introduce those standards inasmuch as we were

prinarily concerned with the standards whieh were

introduced,’ However, under the itlleeafions of the,

Tudiet nie nt [ desire to Ae sical proof that the United’

States Department Agriculture had standards

Which [116]. were in effect prior to the date of the

te of the consumer vrades,

Mr. Faulkner: © What they were will be spoken

from the document itself,

Fhe Courts Read the question.

(Question read.) > eee .

‘

260 Vye & Vise n and A. -Moncharsh,

- &

. of Robert b. Mericle. )

“The Court: “The objection: will be ‘overruled. I

will allow it. he

-Mr.-Faulkner: — Exeeption. | Js

‘The Witness: A. Theré were U.S. Specials,

U.S. Extras, U.S, Standards, U. S.Trade. am

Mr. Hippeli: Q. ‘Wass there a United States

Departinent of ‘Agric ulture standard for.an individ-

ual.shell ege’ in existence prior to the year: 1948

when the standards referred to this morning: went

into effect ! | | Seek, aes |

My. Faulker:. | object ‘to that, if the Court:

please. In other words, this. Witness—may I cali the,

Court’s attention ta fe: situation as de veloped ip

this regard? Frem the possession of the defendant

there was ipdue document which is now in evi--

dence, U.S. Exhibit No. 24, and it is dated’ in De-

comber, 1942, and it ‘relates to the tentative os

consumer grades for shell eves,.and it provides in

that document thateU. S. Consumer Grade AA shall.

consist of a certain type of egg, in certain -pe ree :

ages, and Grade A a certain type of egg and certain

percentages, Nov, that doetinent does not disclose

the: [117] test, to be apphed to that ege. You cane

not apply the tests.that ec ne out afterwards, that

are subsequent to Dece tiiber, 1942, as the dese ription |

f the eves defined in that ‘regulation, because they

nee pot in existence.” Now, the witness has testl

fied that this is what voterned the frade in this dis-

trict from the date of its issuance to the present

time. The definition of Grade AA, Grade A, Grade

Band Cirade Cis the detinition of those eggs at the

fa as ota

“y

vs. United: States of America out

(Testimony of Robert B. Mericle.)

time of the isSnance of that-decument, and that is

not before: the Court, and vou ean't issue a directive’

to an industry relating fo. standards therm in’ ex-

istence, deseripe them, and’ define them cleariy and

unequivocadly as they have, and then try ste apply

another standard that came ott. later, as the stand-

afd that isintended tovhe covered by this document,

That is my- point. P1942, December 22, vou contd

described, and defined in Janvary of 1943. It was

non-existent. But nae was at that time im enxis-

3 > : o ;

tence a standard.

The Court: Q. ts theré a variation in these

standards from time to time ? | ge ."

A. There are slight revisions in them wren they

are reissued. |

QQ... W hat if any vari tion) as there in is period

WW question here, if vou know ? | |

A. .T ean't recall? | would suggest that they chee’s

the specification that, was in effect prior to 1942.

Mr. autkner: The point [ make, your ‘Honor,

is that these spec fications speak for themselves, Th: it

‘is What’ governs the industry,

Mr. Hippeli:, Q. May’ I direct vour attention

ty the effective date ot Government's Exhibit: 24,

Doctor? Is + that the standard for. Consumer

Grade, A?-—- —~A— Yes - |

Q. What is thes ective date = :

Ap The e thee ise ahite Is De « -emibe py 23, 1942.

Y W ill you refer to the Government’ ~ exhibit

“

262 eo ye & Nissen. and at. Moncharsh

(‘Testimony of Robert B. Mericle. ) |

setting forth the Department of: Agriculture staan

ards for individual shell eggs? | |

Mr. Faulkner: You can give him the date, Mr.

Hippeli. | 7

Mr. Hippeli: Q. 1 notice on the back, Doctor,

a it is dated the second day of January, T9432°" -

Rigi. | ene

¢ Netty, to your knowledge, is there any addi-

tional doc uments that connects ‘the consumer gr: ales ;

with ‘the specification for individual shell egg?

Mr. “aulkner: Your Honor, we object. . Pr? —

The Court :) .Qv’ ‘Do you understand that (lek

tion? we Not clearly, no. yy |

Mr.. Hippelir Q.. Your standard’ for your con

sumer #1 ‘ade eggs— A. Yes? |

A egg. The definition of a’ Grade A egg appears in

the first part of 1948. “~- A. Right. [119].

Q. Now, in 1942 when the consumer grades far)

shell eges were issued, what defined. a U. S. Grade |

A ego’? } j A a

A. The specification that wis in effect foxy the E

individual shell egg at that ‘time, cee |

Q. And there was a specification ii effect prior

to the one we have before us here? A. Yes.’

QQ. Have. vou tha ‘specification in your posses--

sion ¢ - A. Not here, ne, - / | |

QM. You have it in veur custody: down at the of

fice, have you not? 2

Q. And vou received that specification, Tromthe &

epartment of Agriculture. dn W ashington ?.

a ;

ous. Mitced States of America —: 263

(Testimony of Robert B. Mericle. )

A. Vhat is right. i

().. Was that official specilicattor for the’ meat,

“Zeer Ks

“vidual shell ery in effeet until the speeiheation for

“individual shell-exgs dated January of 1943

Mry Faulkner: Uf the Court please» =

Mr. Hippeli: I ask permission of the Court to!

allow Dr. Mericle, to afford him an opportunity to.

bring down the specification for individual shell’

— eggs that Was in existenc e for that period ofta. few

weeks,

The: Court: - or TAY bring it in tomerrow

morning. eek Ral a

Mr. Hippeli: Thank you OS" eek

Mr. Faulkner: We may have it now, your Honor,

We will find out. I thought we had, vour Honor,

but evidently “we. have not.. |

Mr. Hippeli: Q. Doctor, we were inquiring as

to whether [120] there were United States Depart-_

nent of Agric ultiire: standards for individual shell

| eges that were in effect prior to Jannary 3, 1943,

, the date of the issuance of the. standards which are

fe in éxidence. “A: There Was. . aes

ce a

QO? Were they genetally ile conformity with the

2 Standards effeetive on January 3, 19437... = -- g

| Mr. Foulkner: W e-will object to that as. calling .

|. for his opinion and cone lusion,. vour Honor.

; Mr. Hippeli: I abe asking the wittiess to testify

: generally if there. were Department of Agriculture |

Standards fixing the: ey ade of individual eges in ef-

s rect prior to those. whieh” are in evide ‘nee. I do not

‘ F

264 - Nye d& Nissen and A, Moneharsh -

(‘Testimony of Robert B. Mericle. } ot an

desive, although TP awill if the Court requests, te im

troduce the wrades in effect ‘before that time, he-

cause | de not think they will become a material

part of our case, ‘But under the charge of the in-

“dietment, the indietment has alleged that the busi-

ness conducted -+by the: defendants in the sale, in-

spection and erading of eggs were subject to ‘De-

| partment of Agriculture standards, and I want to.

establish at this time that certain. standards did.

exist, although, as I say, what the patticular stand--

ard prior to those in. evidence was, L do. not deem

material, but IT want to establish t there were

some standards, :

Mr. Faulkner: Your J

that aut industry ‘such as) Nye

wouldn't it be true.

Nissen would be -

ds by virtue of law, not by_

ss said? [121] °

The Court: Read the questton.

subject to those sk

virture of anything this witne!

(The fast question was vead.) -

The Court: TT will allow it.

%, . © . : J

~My, Faulkner: Exeeption.

a - - © AE:

; Pa CS. aii *

Mr. Hippeli: That is all, your Honor.

The Couit: We will take a recess for a few min-

o utes, The jurors may be excused.

(Recess.) [122] ™

| - Cross-Examination | | a,

Mr. Fanlner: Q. Doctor, you have . testified

that on occasion vou were af the firm of Nve & Nis-.

“a.

sen, it that correct? A. That’s right.

’

us. Enited States of A merica ~ 265

(Testimony af Dr. Robert b. Me ric le.

Gg. t- ‘would like vou te tell mie ‘the first time you

ever met oretalked to Mr. Menges. Will vou stand

up. Mr, Menges? What is*the first time vou ever

talked to that man? 2° | AL «DT 1944.

Ov In what month?

A, alam not positive. I think dlong in "May. |

Q. May. Now; then, what was the first time you

ever met Mr. Berman? Will you stand up, Mr.

Berman? A. The fall of 1948.

Q. The fall of 19432 Ale Yes, |

Q. When is the first time vou ever telephoned,

talked on the. phone’to Mr. B erman ?

- "AS [don't reeail.

Q.. Do vou ever reeali talking on the telephone

to Mr. Berman at any. time at all? AL Yes.

Q. When? AL. In 1944. |

(). What month? - ,

AL The spring. “1. don't) remember: specifically

What month, | ee | ae

Q. In the spring? CAS Yes. :

QQ... What was the subject of! the conversation ?

e. With: reference to egg Inspections.

Re DIT he make any request of you—withdraw

that. What conv ersation did vou have ?

X. On the phonesvou are refe ring to? F123]

Q. Yes, What did he say.te vou and what) a

vou sav to him?” .

A, Requested egy inspections, : : = 7

. No. What did he sav to you and: what did

you say to him ?* : ioe

266 oe ye df Nisse nand A. Moncharsh

(Testimony gt Dr. Robert. RB. Meric ‘le.).

A. He reunested that we make a grading“@t the.

plant of Nye & Nissen, egg erading...

—- Q. Did you vo out subsequent, Ao that and make ;

The i inspection ?

A. One of my graders from the San Francisco

office went out,

Q. >-ardon me? | 3

A. One . a our graders in ‘the San Francisco

office went out. Soe ae 3

(). Did ‘youQgo out? A. J did not, no.

Q. Did you ever go out to Nye & Nissen to vrade

eggs at tie request of Mr. Berman, vourself? ~

A. Nov.

Q. Did you ever go out and were you present

“when eggs were graded in Nye & Nissen at a time

when Mr. Berman asked someone to go out to Car os :

eggs? A. No. |

°Q. When was the first time you ever met Mr.

Goddard? Do you know Mi. Godaara +

A. Yes. aie ce

Q.. When, was the first time’ you ever saw Mr.

: Goddard? § So-the jury will understand, Mr. Godd: ard

will you stand up? A. . In 1943.

Q. What time? ~ A. The fall. :

Q. Did. you ever have a conve rsation. on the tele-

phone with Mr. ( toddard in — to an inspection

heing called for eget... .. A. Yes. [124]

Q. When? . A. - In 1944. |

Q. What month? .-. A. The spring. ¥

Q.. When you say ‘‘the spring ** what, do you

call spring? - :

vs. United: States of America 267

(‘Testimony of Dr. Robert B. Mericle.) -

ae don’t recall. exactly: along in March or

April. | ee iE re

QQ. That is the first time he ever requested an

inspection hv you, is that-correct ? | an

A. To my knowledge, yes.

| Q.. ‘After that conversation. did you go out. and

inspect any eggs in. the plant of Nye & Nissen, your-

self ? tA. No. | 3

Q~ Were you present whep any inspector went

out and grade d eggs ats Nve & Nisse ne as ‘a’ result

of a phone call? A ¥en.

—Q. You were? — Senet) ‘ 7

- “A. The-specific call, yojl niean where I took the

call Bs ee i

Q.- The specifie call.’ Mr. Goddard phoned: you

and’asked for an inspection. Were-yvou ever ‘present

When—were you present when the. inspector - went

out to make the erading of the eggs that he tele-

phoned concerning ? ,

A. May I qualify my answer on that ?

jnidge will tell von that. You liave to answer first.

A... The majority of calls are received in our of-

fice by a girl, It is? very seldom that they are not

received by the girl. In a few instances where T

received the ‘mit had been early in the mor ning, and

hefore the girl had arrived, For that. reason the

times that T have accompanied the grader to the

Plant has been in-instanees whe ‘ve the call had heen

received hy the: girl in the office: [125] -

O. “Isn't it a fact the general request for an- egg |

268 Nye d& Nissen and A. Moncharsh

(Testimony of Dr. Robert B. Meriele.)

inspection was made by: the telephone’ eper ator at.

“Nye & Nissen? . <A. No.

—-Q. Tt is not. All right. ‘Phat is vour qualitica- °

tion. - Now, will you give me: the answer that that:

qualified, please ? Answer the question, Sy eee nen

ce. ieee. *. eerie ee = ie | }

(). You testified that vou, pe rsonally, had a‘eon-

versation with Mr. Goddard in Whieh Mr. Goddard: |

asked for an egg inspéction. [asked you if vou

-were present at the.time the egg inspection which |

“he requested was done. AL Noy’ Twas not,

Q. When was the first time’ that you talked to.

Mr. Abe Moneharsh about an ézg inspection ?

"A, 1943, in the ‘fall. soiree baeel

Q. Fall of 1943, A. Fall off 1943.

~ Q. Is that the only decasion.. "A. No.

QQ. Did you have many requests, for ege inspec-

tions in’ which Mr. Moneharsh requested them per:

wonally? 7° A. No.

Q. How many, would you say you had in the pe-.

riod of: time from the time you‘came out: here up

to April 29, 1945? _ ryote hy neta eee

A. The number I pers sonally réceived?.

Q. ‘The number of times Mr. Moncharsh person:

ally asked an ege inspection of you.

A. None : | ee

Q. Maybe ! idnopdsesnl: I thought vou said

you had a phone call by Mr. Moneharsh in the fall

of 1943 in-connection with an egg inspection.

AL Our office had: T did not say 1 personally

had. r

mE eS

us. Unite d States of Aine rica" 269

(‘Testimony of Dr. Robert Be. Mericle.) | a

“Q. Loam talking about you, persoiially. You,

pe rsonatly,. never ant “aay conversation. with: Mrs

Moncharsh, is that correct ! t [126], mean

A. Regarding his request for an inspection, a

personally have not, no. ; 3 ’ ;

Q. Doctor—if I call you Mister it) Is not being .

impolite, 1. want to eorrect iy self—Doe tor, you:

.. have testified to matters comerning a caudling room

in the firm of Nve & Nisse ne Where is the candling *

roony! ?

It is located close to the, shipping office. as I

all. 1 think they call it the shipping office.

Mr.. Hippeli: 1 sugvest vou ide atify the plant

whieli you are referring to. gate’ aren i

Mr. Faulkner: The” ene: you referred to this

hornitig "where You saw, this Exhibit No. 2 ae

A.- Yes. | : oo pide ine e

Mr. Mappeli: At what plant did-you see the it ?

| Mr. Faulkner: What? | |

Mr. Hippeli: T waswsking him at what -plant he

Saw that. -° era. a:

A. That is the present. planit, that ds the only

one they: have been in since I have’ been in San

1) raneisce,

Mr. Faulkner: Q. Lt-is on Siac, at Seven-_

teenth Street.“ As you vo into that plant on the Se y-

eritee nt

+. Street entrance there is somewhere in ‘the .

t candling oe Where is that capdliig:

room ? . : . ;

par. Were. hich is the Seventeenth Street entrance '>

Ts that the loading side? ?

‘\

oe.

270 : Nye d> Nissen and. A. Moncharsh

. (Testimony of Dr. Robert: -B. nee le. )

Q. The one that, goes cast and west..

A: As vou go into the plant om the Se venteenth

Street entrance, say this were the [127] Seventeenth |

st rect side, the north side of the jury: room, liere,

the candling booth would be on the far ‘end of the

building, the south. oe Foe rs Ge ce. eas

Q. Have you ever*been in that candling room?

A. se cee a 1 ar ee

Q. Is it your. testimony, Doctor, that in that

vandling room they have Exhibit 2”? on the wall!

5 ee have seen it there, yes,

Q» When did you see it there? |

A. \At times When I have been ing the room. «"

Q. Whereabouts: on the wall is, it?

A. Just ifiside—there i isa cloor at the end.of the

eandling room. It is inside ‘the door, on the wall.

-Q. On the wall just as you enter the room ?

A. Right. :

-Q. “You know, as, a matter of fact, Doctor, that

Exhibit 22. is not uged by candlers in the candling:

of eggs. in a plant like Nye & Nigsen’s. plant. don't

you? ~ A... Know that it is not used? | foe

~Q. Yes; it-is not used.: That i is rig, isn't it?

A. ‘I don’t know:

29. Have yon ever seen: egg candiers use it im

‘eandling plants? A. ‘Yes.

Q. You have seen “if many times ? >

A. That's right. ss

Q. Isn't that right? A. “You - ye ®

Q. ~ How. many. eggs does a normally able candler

candle in an hour? “ae

aK. Uniled States of America 271

(Testimony of Lr. Robert Bo Meriele. "

“AD: How many eggs, or cases? - veer

(). Pardon me? [128] - eames =

The € ourt: | He w ants te know Whether vou want

eyes or cases of eggs.

Mr. Faulkner: How many eggs will an ordinary

candley candle in an hoi either cases or eggs t

re Approximately: three cases. : ons

~Q. Three c: ases would be 1080 CEES, is that right?

‘AL ¥es. ie . i

Q.. In.an hour, when a candler ‘is’ candling 1080 *

eggs, the: candler has to take the eggs out of the

‘filler, place them in a convenient position, lift the -

*- eggs out of the ‘filler, hold them to the light, ‘and

then deposit. them in anywhere from twe ‘to four- .

teen hoxes and place the had eggs away, isn’t that

“usually the practice? . A. Yes. ees

Q. So that 1080 eggs ‘candled in af? hour, it is

done with a! Larbst lightning rapidity? > ae

(). “So. fast vou can't sée the egg move and see

how. the person takes the eve ‘and “ts: it to the

liglit; isn’t that correct? You cat't follow the egg

in the hand of the qandler, isti't that correct ? |

A. Almost that fakt. I woe say quite fast. You .

Auth Follow it. . yieg : .

(). Doe ‘tor, vou testified’ this morning with cer

tain interruptions hy: counsel, for whtelk 1 may have

heen the main ftranseressor, Vou testified ut Feat

‘

, length on these various gradés- of ees, these vark

“<

ous refine ‘ments in griding the eggs. and how a.

eandler forms ; t jndement cohéerming all-of those

thities With a rotity that almest is faster than

ae.

& t . >

oe . “4 fo = ks

“ : ail by | . \1

. >

04 | oe “A Ye A Nigser ny ae ica harsh

Lg Ritimnb ot Dr. “Role oh, Mu viele, }

ae Hie eyetean tole 4 =U 29] the mavement of the egy

tthe, ] nants of ‘ie eadlgan &

a. ae. worlds say not «ite “that fast.

ps e . ¢ 108% CES 2 TT ygle f mean an ‘ees that is

gu i YI, nora ial -eanidline, Wehen COIN’ throneh “that

eee POCOSS does ain normal van: ever ook’ at at: Le

ahibit 2 Pag: to ( andle bas hy ? : :

| as ttl Ss Se | as a ‘onide.

ae oe (). —Ahave SOW ever seen in your, life a competent

2? oandder, vatadle” CLES, Topk at “the eges hefore the 3

Jight at one time and a hited: & ates. Exhibit Be #.:

| the other! ie seat A. . ¥es, |

re : x Q. Where? «-

; i a, Cae |! hen you are training eg andle VS

i ek Sa

~< OF, When-you “are training them. cen :

a Oe 7 am talking about a plant, an industrial

po tae)

TY eee ean es

Mr. Wippéli:. Ye aT sine him ‘did he ever see it.

ne Ie aulkner: All. right. -f will withdraw that.

In othe Y words; when.von ti rit out ta tram

. mee yout train thenr, with: a 1 card like this? . is

re A: Yes. ‘ : ie ee y a Sens ae and bs

-Q.: Have you ever seena “conipe tent professional

tel Work, for, Nye & Nissen,

cmornvone else, examine an eee = spate it with =

Le Hike Exhibit 22)" Yes, have,

WT Where? :

0 Pata nrmber. fe plants They will do. that

soeandler, the type that w

os Be

awh On the a have eres. they are cundting. and they are

mn doubt as to the- iiiauali de ade of the oo ée

“

é..Q. Where?’ 2. eo

+e ii nit States of. America: - ze 273

{estinony of Dy, Robe nt RB. »Meriele, j

Qo What plant, nanie the plant 4

AL AY Poultry Produce “ES plant.

“AL A number -of ee branches, “Sacramento

plant, [130] Stockton plant. | a

Q.. Whevilid you see that? ;

~ When TL have been in those plants. °.-

. Give me a time when vou have been in the ®

and. have seen a professional candler, in the

process of. candling eves, compare the egyus with

that card. A. May, 1944, [130- ale &

Mr. Paulkners (). ae ith ‘

A. - In May “of 1of4. .

_ QQ. Have von-ever seen anyone do it in 19454

ai A. Ocensictially, Ves, '

Mr Faulkner: Q. As # matter of fact, Doctor.

“AX: Yes. tt : 3

Q.? Where?) 9 7+ A, Los Angeles.

Q. What plant? x )

i se Mandel] and Company.

~ Pardon me? . A. Mondcli:. ;

Tn those instances that occurred when Gu: re

ee a dispute with SOMEONE over the candling. of a.

particular “egg, didu't he + i eeu

Bee Bnt in the ordinary: process of eandling the:

PSRs, apart. from any. disputes with the Department

of Agrieniture or dnvhody else as to the quality of

a given egg, do they use that ecard, Exhibit 229

AY OW hat. is your question again?

The Court: Read: it. : ol ae

(Questidn ' tec, we 7 od

”

—_

yes,

a eget — OA, At varions times, yes.

4. - Nye & Nissen and A, Moncharsh-

Testimony of Dr. Robert BR. Mericle.

-the Nye « Nissen ‘plant, Was dn au eve candling

Hoole “spec rr ly pre pared | " N\ eX Nisen for Mie

Deportinent of Reale leone “inspectors x? 3

A) -Oneain the candling root also. )

“e). Asn’ i that the ouly “place where there is a

card?) A.) Pardon? oe ae

‘Q. Isnt thet only place In that plarit Where

Q. You do not know -of ‘any other place ?

‘A. LI said in the [131] cdndling room.

Q. ls there one ‘in the candling booth: that was

especially erected for the is artme nt of Agvicul-

ture and the army inspectors A. Yen?

. . In addition .to that vou say there is one in

the candling room? | AL. Yes. |

Q.- tn your work in supervising the e¢ andlinyg af

Orgs is’ it 1 equired that vour ‘inspectors compare

the’ eggs with Exhibit 22?

A. They do, when there are «estionable eggs.

* ‘ ao, z Q %

—— QQ: Does, the experience of those inspectors re-

quire them to use Ki shibit 22 in order to determine

the quality of an egg, the general ron of) your

Inspectors ? 5 | :

A. It is used as a guide, ves.

Q. Do they normally And customarily Mse it as

Q. You have: testified that von have bid as in

‘ r &

/ ‘ . ‘

“is it not trae that this exhibit 22, weet you saw in.

there is that card? & 7 ay

A. Ut don't know, but i know it is there. T do |

not ae about other places. % aes Sa fs

at is .

i- ee oe 33 nited States uf ‘America 279°

{ Testimony al t Dr. Rubi: 1 i. es pele)

| syi tars working Muder. vous SU eev in Poni Cheon 7s

s Reid ~ David Moosman.. Mr. Schumaker. Mer. Rosen

‘ berver ane’ Mer. P3hrinn. De those rier rehire f

_ hibit 22 to help tht grade an egy ¢ : r

4 A. Requiresit a

A ; Q. Yes: ‘Do they require “Exhibit 22 to help

g them grade an egg ?. A.- Yes.

a QO Doctor, isn't it true that any competent ine -

3 spector can look atcan eee and form ab. Opinion

4 without Tooking at Exhibit 22 without any trouble

Dae oo eee aes

a + A. Yes, Kut this is still used asa side. [132]

Ay Re is nothing official about. this guide, is

there?) Exhibit 22—is it official? Is there anything

Ee official about this guide? Isn't. it merely “an ilos-

4 tration to show’ the uninitiated what to expect to

Ee find in an egg? Isn't that what it purparts to be?

BOA Phat is tharcit is. ar 7

3 . Nowy then, the wide to the inspeetors is the

‘ ‘Voles “and regulations, isn't it?...% Ae Yes,

4 -Q. In other: words, the thing that determines

4 Whether an ELE COMES: \y ithin a “particnl: ir ategory

b “in thie eves -of ; 1 competent IN} weetor As his Knowl-

q cedve-of the de finition Of a standard 7 fixed by the

: r ea thie of Avricolinve and his opinion of

; se Whethet it comes Within that standard. isnt that

_ Sorvect? — AL Phat is correct,

f) And ‘this ‘doeuneent hebe, Exhibit 29.. whieh

thy rors all had, is just something Hike a printec

hook that: Vou give a-ehild to illustrate something

He does tiet knew iueh abont. isn’t that rieht?

rs)

276 Nye d& Nissen and. Moncharsh

(Testimony ef Dr, Robert B, Mericle.)

Mr. Hisfpelr: ~ We object to that as arguments

tive, your Honor. | ; } : .

Mie. Manikner: t Yhink it is clear to the witness,

your [Fonor. |

The Court: Read the question.

(Question read.) + 6

The Court: 1 wildallow it. You may answer,

A. TL wouldn't say that, no. [133]

Mr. Faulkner: “May I have that duswer read!

( Answer read.) - he i al he

Mr. Faulkner: ~Q.. Phen TP will ask vou, Doctor.

will you state te me what official relation that card -

has to egg inspections under the standards sét out.

by the Department of Agriculture, what official re-

lation it has to those stand ass 2 . oe

a It is put. mit by ‘ff UL S. Department of

Agriculture by the Secretary’ s offic.” : |

Q. Is that your compl: te answer? 3

» A. Yes, inate L ae

~~ Q.- You are familiar with this EK <iibn 22 and

have been for a long period of time, isn’t tliat cor-

rect? ~ A. Yes. .

Q. When did you first see.one?

A. Exhibit 22? . | , . men

AQ x CS, ae hen did 1 von first See IK whibit Lop a.

counterpart of it? °°.

A. About 1941 or °2, think. T am not positive

as to the date eae eame out. : | =

.Q. Would it be in the year “1941 or T942, one or

“the other? | /

ak atin

Isn't the at right?) A: Yes, |

). Now, vou testified at the close of your wae

: : ws. United States of A NOTICE. ae

(Testimony of Dr. Robert He Mericle.) —'

AJL am not positive. It was at. the time, the

‘grades were changed over.

Q. World it he before the vear 1943.

ee | ’

A. Yes.

-Q. So that this oF when vou testified |;

some le et that U.S. Exhibit No 22 was ide eae

with U.S. Exhibit 21, the facet was that this exhibit

Was in existence before regulation or. direction to

inspectors: 21 eame Unto hein, isnt that correct ?

mony that there [134] was in December of .1942

builetin anda regulation Le tining the standard or

qualities of eggs in existence in December of 1942,

‘is fhat right ? a fe Vee 1 eas

Q. Have‘vou made a seare h for that regulation ?

A.. No. .

Q. Did vou seatch fornit Iitore you came into

court ?. An No, een

Q. You have testified that Exhibit No, 32 is a

practic ally identical with’ the standards Uthat were

In existence in Dece mbe of 1942, is that your testi-

niony ? A.’ Yeu. ee

Mr. Hippeli: 1 might suggest that you shaw him

the exhibits, é cae e ed

Mr, Faulkner, He ‘dia ‘not’ have the. éxhibits,

when he testified to that. ‘ | :

Q. Now, 1 would ask vou to define how a grade

AA ege, under the standards’ in existence in. Deeem-

. : E : ‘

her of 1942. Was dese ribed and how ipa defined ? -

278 Nye & Nissen and A. Moncharsh °

ee acs

(Testinfiony of Dr. “Robert B. Mericle.s

A. Is that the standards according to Exhibit BE

Mav Hippeli: The e fective date of the chiaige is

Vecember——, . 7 nal. |

Mr. Faulkner: Just a moment, . if the. Court

“please: Mr, » HAppe Hits: role is. togpake legal oljer-

tions, T respectfully submit, hot to aid the witness”

at any time by explanations or otherwise. I -have

~asked the witness a vary simple question. Betitre

the recess he testified that the standards i iM eXIstence

before December, 1942’ were identical avith those im

existence under Regulatjon 41 in January. | have

now asked the w itness £1: 35] to define the regulations,

define the requirements. of a Grade AA egy 1 De- -.

cember, 1942. i eke

“The Witness: They are similar’ to the various:

quality factors as the one whieh was apptoted in

1942." "Phe ay cell was onesei ighth: inch in depth. It

-was-regular. The she Th was cle an, normal; unifern.

The white was firm and clear. The volk—i am net’

clear as to the volk de inition, 7 | .

Mr. Maulkner: \. How was the egg dese ‘hed?

What was- the descriptive word applied to thy eae

fe, Speqial or AA. Ss ne

Q. US. Special what? icone ek

A. - Or U.S. Grade AA...) °°

(). [n 1942 they used either term, is that right.

and prior to that?” Tonnes

A. .Prior to that they did. . )

~ Q. T mean in Deveniher of 1942: gid they use

“U.S. Speeial or Grade AA—— 9 7

Mr. Hippeli: Did who use nt mens

. Vyited Nliutes of Ape rien :

(Testimony af Dr. Robert I. Mericle, h we ed Moet

Mr. Falkner: The Department of Nerieultirre

in detining the standard for eves.

A. . Prior.to that, ¥es, .

Mr. Faulkner: Q). Ty DkeCemher What was the

notienclature “used in the bulletins of the Depart--

ment of Agricultire referring to the highest gerade

of consumer egos? A, LUIS. Special or AA, 3

Q. Now, whaf was th le nomenclature used to de-’

se ribe the Ale xt ¢ ry ade of CYS

AL USS. Extra or Al | a

6 QL And what was the next in quality. described

Me AOD S., Standard or, B [136] ' ie

Q. And ens Was’ ‘tite neXt ! a :

“A. -U, 8S; ‘rade wT gee wees age:

--@- Yon’ fone this” morning g, as distinguished

frotn this afternoon, as to the require ‘ments of this

Exhibit 21, which were rules and regulations to be

e eniploved €or the grading and certification of shell |

E eggs hy: official graders. Is it not a fact, Doctor,

that Exhibit No. 41 is a directive. to ernplovees. of.

the Departme nt Agriculture who are engaged

in the. work of: certifving eggs, evading theny and

certifving them? aie ,

A, Directive to the employees ? Yes,” to oe ar

graders, . : se

Q). Isn't tliat « ceorrer t—graders who- Rae rertity-

ing eges? (A. Yes. Ma ages ie X 3.

Ko. Now, the aet of evading and certifying eggs

is an altogether, different operation in its entirety

frowi the aet-of roing down and inspecting eggs,

isn't it? Isn’ t that correct? -

280. Nye & Nissen and A. Moncharsh

( Testimony of Dr. Robe nt BB. Meriele, )?

A. No, I wouldn't say that. —

. Do eggs have to be inspected or vertitied hy,

’ the Department of Agricilture to be sold ?

A. No, oa aden | : z

4). You say that tthe act of erading and certity-

ing eggs is not a dissimilar operation inthe egg

business. than that of inspecting, is that correct!

“A. Is not the same as inspecting ?

Q. Yes _Y ou say it is the same ? ,

oA, W od do you mean by inspe cting?

.Q. You testified here that on oceasions yau were

» requested -by Nye & Nissen to come down and ‘have

* ™. “Was that oper: ition similar in any way fo an

over all [137} Bperation relating to grading. and

certification: of eggs? Aren't they two different

operat ions in the’ busingss ! >

A. What *desvou nrean by. grading? Do yos

mean. ‘the plant ‘grading or our grading? |

Qe Do you ndt’ understand the question 2

A. - Not clearly, Ho. | , ee :

Q. Is there ani “operation in the egg business

known as grading and certify ing eges? |

A. Yes. ;

.Q.. De scribe. that @peration to the jury, please.

“A. Grading jis the actual candling of eggs inte

thesrespective erades. Certifying egos: TS packing

eggs under certificates of qnality where you have

limited. licensed. candlers doing. the acttial candiing

ope rations, and the eggs are pac ‘ked and sold under

certificates of quality. : | ‘ :

)

ee ir e i.

} ‘ A lg ~ > t + Vv ;

vs, Unite de States of Nive riea _ 251

(Testimoniy-of Dr. Robe rt b. Me re le)

Q. ‘That is Wiat grading and y ce Mifvirie eves

~. means, isnt It? | :

A. . That ‘is certifting CLES,, Ves, -

Q. Will you ceseribe the operation im wiie ‘1 you

20 in, andr - wes for shipme nt

A: The-eges are Aeady graded Ga our grader

goes In and pulls a sé tiple from the respective levt

which the y want graded and grades the eves as. pre-

_viously me med in the sample cases Which he

“draws eee ; Pe :

— Now: Gen. the duties and services performed:

by the Departinent of Agriculture when rou grade |

and certify eggs are completely dissimilar from the

duties you per form, when > you Inspect egg Ss. anen’t

-they?:- A. - Yes. ; Gers yeas

Q. ‘As a mater of fact, you do not grade or cer-

tify eggs-at the [1- 38] Nve. & Nissen plant in Sana

Francisco, Lo vou? e | ic ics

A. “We grade eges, Ves. ‘

Q. f mean grade and certify. There are two acts

as one Continous operation? — os

A... No, we do not erade and certify. t as

Q: The term grading and certifying THe ans that

the oh aders, are bonded and that the assembly of

eges unde i that operation are certified té and cer-

~ tilieates are issued and they are all done under the

“supervision of the Le ‘partinent of Agriculture, isn’t

that right 2... AL’ That is‘right. :

we Q. In the sliipments to various War agencies

that is not the operation fol wed at all, is it ?.

A, No.

(| ie Nye d Nissen and A. M oncha rsh

{ Testiniony of Dr. Robert B. Lericle, )

@. So that the inspection of graders and “cort

fiers of eggs and how the We shall conduet. that site

is dissimilar to the instr uetions to. graders and in-

spectors who are inspecting for war shipments, isu’

that correc ‘J’ 5 : | Nees ay

A. Different instructions Seer _

Q. Yes? ~ A. No, I would not say So,

Q. Is there a single instruction—I am talking

about definitions—is there a single instruction, to

. guide an inspector for war shipnients contained in

Exhibit aS a A, Yes, — |

-Q. Where is it?... Jo ers

A. ‘It.is the- interpre tation of. the individu: —

*@. Read the. instruction, ‘please. -

A. Interpreting the individual quality. of the in-

dividual shell egg. | ee

eee 2 hat number, Give me the’ number of the -

instruction. Ua See oe ee eo j

A.. The individual shell egg ‘quality is . there.

Q.. This is a definition of quality, a standard of

quality established xt the Department of Agricul-;

ture. J asked vou to show me a singic instruction

relating to ibspecting egies for War shipment com

tained in Exhibit 21./

A. There isn’t any. ,

tors ate. required to follow in deté ‘rmining the. qual-

ity of shipments of eges to war agencies, isn’t that ¥

right ?, Aren’t- there instructions?

i. ge Tnstriictious for grading shell eggs, whether -

‘they go’to-war agencies or not... ).

e ¢

" -vs. United States of America 283

(Testinony of Jr. Robert Bo Mericte. ) .

(). Aren't there particular instruetions relating

to the grading of eggs that are to he iuspected fo

warragencics 2 Yes or no, ple ase ? A. Yes.

ie * Have you got them?

AD “Not here, uo. | , ; :

2Q. Will vou bring them tomorrow morning,

please? . ‘oe eee ye |

Mr. Hippelj: | object to that. vour Honor. If

he Waits to introduce these, Jet him make them part

of. his own Cane, ane ave bevond the scope of the

direct esamination. eos.

Mr. Faulkner: Lf you Honor please, the diecet |

examination directly indicated fo this jury that all

of this testimony related. to someting relating fo

the sab jeet: inatter of the indictment, that’ these,

Were the things that. were supposed to he. done, and

they do not relate to that subject matter at all: aid

T submit [ am entitled on eross-e: amination to- ‘PYO-

.ducé the aecurate record of What did gnide these

, men doing the things gbis- “Witness testified, to on

direct examination: [14g] eh ae

| ‘The Court: You ee for some documents.

WW hat-ave+t hey }———_ ieee

Mr Faulkner: T have asked. him for ‘the Instrue-

tions to the Inspec tors of the Department of Acri-

| culture ‘which they were to obey in inspecting eggs

for y Wat sninients during fhe pe riod, | /

The fourt: Are there some instructions avail- %

. able j in that respect? : a.

A. No specifie instructions for shipping, no.

6° . The Court: There: are no specific instructions.

(Testimony of Dr. Robert B. Me re sles)

not have, mo . -

gradings when vou inspect for a avar agency, do

you? -, Pa RS eae 5 was

“woes toa War agency or niles TWISe, The or: ading ot

cial grading or a. contract. grading for the war,

agency... ; ,

ageney which the Department. of Agriculture “is

. give am individual shell egg inspection f Yes or no:

284 | Nye & Niseo n tnd A. Monepareh

Mr. Faulkner: He. said A moment ago—be had

them in his office. - - :. | aa

The Court: TF just asked him You may pursue

your ipquiry further, | _

Mr. Faulkner: Q. iv hich is correct! 4.

answer vou gave his, Honor.or the answer vor gave

the? .\o 0. * - | . "Sa

A. Specitic instruc tions for way shipping we do:

() Have you spevitic justrnetigns for grading

eges and inspecting gr ades Por; sile. ‘to Far agencies!

No”. 3% ne a

Q. W hat were the instructions you said vor had

a moment agd down at vour office ? ,

A. fustructions for making individual shell: egg

gradings, whether they ‘are for. war AENCIES* 0 or

otherwi ise. id >

Q. Doctor, you do not male jndividual shell egg”

‘AS “Yes. I. is 32 regular inspection for a partici

lar lot of ceep thatve conduct. There [141] area

hundred cages that. they want. eradled, , whether, it

that ts peiformed identical, whether it is a commer:

Q. “Dr. Mericle, is it not a fact that if any war

sracine for Sec’ ives an order ior eges they. do not

rs:

her of eases ?

P _

us. United States of America a)

(Testimony of Dr. Robert BA Meriele. )

‘. Thes vet an individual shell exe it speetion,

a. . The iiuswe ris ves?

"Nhe € OUrt : Read the TNSWeP, ‘

\ [aaa |

( Answer Pead,) ) /

Navy. or the W ay imikitee’ Aduninietratidn=2 “OY-

dered 500 wases of egos, yn all like lik ood less than

ome percent would: he shell By 44 duspected, ist thot

trie, instead of [00 percent! : sae

Av. Are vou pas dag cases or * the actiqal meme

Q. Jam talking abont 200 cases of eggs. We.

will assume; to make it clear, there. arera00 cases.

- Of eges in this room going-to a ship: A. -Yes

Qo And’ you are. going ‘to ‘inspect them. Your"

-destimony Ux that. you shell inspect each egg, isn’t it,

en Mr. Hippe

up to this ponit ! : ‘ A. No, it is not.’

(). Ww hat do. Vou do? a . - . os x

Av T said’ we inspect the required sunber of

samples for the 500 cass. [142] 4 :

,QY. Is the required number of saunples called for

in Exhihit2i?- 2. A, “No.

Q. They: are called for in a regulation, aren't

them, ‘the number of Cases that you pic k ont and in-

spect does’ hot depend On your jidgment.? They are

Mr. Faulkner Q. lf a war UECUEY, if i is ix the 3

limtited in a fe Tebjer isn't that true? . - o°

T object to that as beyond the scope

of thé direct: examination.» 4 :

The Courtk The ‘objection is overruled.

Mr. Paullner: A Isn't that true, Doctor?

io)

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