United States v. SB Penick & Co., No. 230.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtL. HAND, SWAN, and FRANK, Circuit
Citation136 F.2d 413
PartiesUNITED STATES v. S. B. PENICK & CO. et al.
Decision Date17 June 1943
Docket NumberNo. 230.

136 F.2d 413 (1943)

UNITED STATES
v.
S. B. PENICK & CO. et al.

No. 230.

Circuit Court of Appeals, Second Circuit.

June 17, 1943.


136 F.2d 414

Benjamin P. DeWitt, of New York City (Sidney Pepper, of New York City, of counsel), for appellants.

Mathias F. Correa, U. S. Atty. (Robert Roy Dann and Samuel H. Reis, Asst. U. S. Attys., both of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and FRANK, Circuit Judges.

SWAN, Circuit Judge.

The appellants were convicted of violating the Food and Drugs Act, 21 U.S.C.A. § 1 et seq., by making three interstate shipments of ephedrine sulfate which did not conform to the standards of the United States Pharmacopoeia. With respect to each shipment one count of the information charged that the drug was adulterated and another count charged that it was misbranded. The shipments were made on November 1, November 17 and December 14, 1937, respectively, to Premo Pharmaceutical Laboratories, Inc., of New York City, pursuant to a contract of purchase made by Premo with R. Hillier's Son Corporation. The latter corporation was a wholly owned subsidiary of S. B. Penick & Company. The defendants stipulated that for purposes of the trial the two corporations might be considered as one. It will not be necessary in this opinion to differentiate between them, and we shall refer to them collectively as Penick.

This appeal raises only two questions, each of which related to rulings of the trial judge on the admissibility of evidence received on behalf of the government. The first has to do with the issue of the identity of the material shipped by Penick and the material analyzed by Dr. Reznek, the government chemist, and found by him not to conform to U. S. P. standards for ephedrine sulfate. The material analyzed by Reznek was contained in small bottles (exhibits 17, 18 and 19) which an agent of the Food and Drug Administration had seized in Premo's laboratory on April 23, 1940. Exhibit 19 relates to the first Penick shipment, exhibit 18 to the second and exhibit 17 to the third. The proof of the government to tie up the contents of these exhibits with the Penick shipments was as follows: Dichter, a chemist in Premo's employ, testified that when the November 1st shipment arrived he took a sample from the containers in which it came and half filled a small bottle on which he placed a label with Premo's order number. After testing a portion of the sample,1 he closed

136 F.2d 415
the bottle with a screw cap top, without any seal, and placed it in a box labelled "Ephedrine Sulfate" on a shelf reserved for the filing of samples. When the second Penick shipment arrived, Premo's receiving clerk, Glaser, took a sample from the jars in which it came, put the same into a small bottle on which he placed a label with Premo's order number, closed the bottle with a screw cap top, and deposited it on a table in the laboratory. Glaser testified that he followed exactly the same procedure with respect to the third shipment. Following tests by Dichter2...

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50 practice notes
  • State v. Brown
    • United States
    • Supreme Court of Connecticut
    • May 3, 1972
    ...in reasonable probability that the substance had not been changed in important respects. United States v. S. B. Penick & Co., . . . (136 F.2d 413, 415 (2d Cir.)). The trial court must also decide under the same test of reasonable probability whether the identification and nature of contents......
  • State v. Johnson
    • United States
    • Supreme Court of Connecticut
    • January 19, 1972
    ...States v. Clark, 425 F.2d 827, 833 (3d Cir.); United States v. Gallego, 276 F.2d 914, 917 (9th Cir.); United States v. S. B. Penick & Co., 136 F.2d 413, 415 (2d Cir.); 32 C.J.S. Evidence § 607, p. There is no hard and fast rule that the prosecution must exclude or disprove all possibility t......
  • State v. Piskorski
    • United States
    • Supreme Court of Connecticut
    • June 19, 1979
    ...itself in reasonable probability that the substance had not been changed in important respects. United States v. S. B. Penick & Co., (136 F.2d 413, 415 (2d Cir.)). The trial court must also decide under the same test of reasonable probability whether the identification and nature of content......
  • U.S. v. Haldeman, Nos. 75-1381
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 8, 1976
    ...1082 (1972) (en banc ), rev'd on other grounds, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); United States v. S. B. Penick & Co., 136 F.2d 413, 415 (2d Cir. 1943). Although the evidence bearing on admissibility should be carefully scrutinized to see if it measures up to the standard, ......
  • Request a trial to view additional results
50 cases
  • State v. Brown
    • United States
    • Supreme Court of Connecticut
    • May 3, 1972
    ...in reasonable probability that the substance had not been changed in important respects. United States v. S. B. Penick & Co., . . . (136 F.2d 413, 415 (2d Cir.)). The trial court must also decide under the same test of reasonable probability whether the identification and nature of contents......
  • State v. Johnson
    • United States
    • Supreme Court of Connecticut
    • January 19, 1972
    ...States v. Clark, 425 F.2d 827, 833 (3d Cir.); United States v. Gallego, 276 F.2d 914, 917 (9th Cir.); United States v. S. B. Penick & Co., 136 F.2d 413, 415 (2d Cir.); 32 C.J.S. Evidence § 607, p. There is no hard and fast rule that the prosecution must exclude or disprove all possibility t......
  • State v. Piskorski
    • United States
    • Supreme Court of Connecticut
    • June 19, 1979
    ...itself in reasonable probability that the substance had not been changed in important respects. United States v. S. B. Penick & Co., (136 F.2d 413, 415 (2d Cir.)). The trial court must also decide under the same test of reasonable probability whether the identification and nature of content......
  • U.S. v. Haldeman, Nos. 75-1381
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 8, 1976
    ...1082 (1972) (en banc ), rev'd on other grounds, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); United States v. S. B. Penick & Co., 136 F.2d 413, 415 (2d Cir. 1943). Although the evidence bearing on admissibility should be carefully scrutinized to see if it measures up to the standard, ......
  • Request a trial to view additional results

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