to the jury is a very clear one. I reject the only prayer offered by the defense. Really, that prayer concedes the misbranding of the liquor, and asks me to say to the jury if they shall find that this was done under the control and by the agents of the United States, the United States, which is the plaintiff in this case, is estopped from proceeding to condemn these goods and forfeit the goods for misbranding. That proposition I reject. Everyone who deals with agents of the United States deals with them with the knowledge imputed to him of the restriction upon their authority. It seems to me it cannot be successfully contended that any agent of the United States has authority to do a thing which is forbidden by law; and it is forbidden by this law passed in 1906, the pure food law, to misbrand any goods which are intended to be or are actually transported from one State to another. Of course the gentlemen of the jury would know, or should know, that the United States has no authority, under the Constitution of the United States, to regulate the sale of goods within the limits of a State. It is only when they are transported from one State to another, and become a part of interstate commerce of the country, that the United States has the authority to pass laws regulating them. So this liquor, without infraction of any law so far as I know, might have been offered for sale and sold in Louisiana, unless there is some law of Louisiana which prohibits the misbranding of or misrepresentation with regard to the constituents of an article that is offered for sale. It is only, therefore, when these goods become a part of the interstate commerce of the country that this pure food law of 1906 applies to them, that "misbranding" shall apply to the placing on the package of any statement which shall be false or misleading in any particular, and provides that any article misbranded, which is transported from one State to another for sale, is liable to confiscation. Therefore I do not think that anything that was done in the distillery in Louisiana, in New Orleans, in any way estops the United States or estops the authorities, or the agents of the United States in Maryland, from proceeding to condemn these goods upon the ground that they were misbranded. It would be destructive of the enforcement of many of the laws of the United States if the act of any agent of the United States could be set up as a defense against the explicit law; the explicit law in this case being that any goods that are misbranded shall be forfeited. If any gager, at the request of a distiller or under a generally understood practice of the distillery, should misbrand an article of distilled liquor, it would be utterly subversive of the law, if the act of the gager could be a defense to the positive enactment of the act of 1906 which forbids misbranding goods that are to be transported from one State to another. I, therefore, reject that contention on behalf of the claimant of the goods in this case.

The real issue which the jury are to determine is whether these goods are whisky as known to the trade and to the community generally, and to those who deal in whisky. If it is not whisky, the case is made out in favor of the United States. If the jury believesand there is a great deal of testimony to that effect-that the word "whisky" is applied only to a distillate made of grain, that is an end of the defense in this case. If they so find, their verdict must be for the United States, because it is admitted in this case, and it is not

a question of dispute, that this liquor is not made from grain, but is a distillate of molasses with a slight infusion of sulphuric acid.

But the jury might possibly find that it could be called "whisky." Then there is a second question, can it be called " Bourbon Whisky There is a great deal of testimony to show that Bourbon whisky, in its most general sense, is a whisky made from grain of which corn is the larger constituent. If you find that this was not such a whisky, then it is not Bourbon whisky, and your verdict must be for the United States. Then there is testimony also to the effect that Bourbon whisky, as understood in the trade, is confined to a whisky made in Kentucky. If you find that to be the fact-and that is for you, entirely, on the testimony-if you find that in the trade, and among those who deal in and who are familiar with the article, Bourbon whisky implies that it is made in Kentucky, then of course that is an end of the case so far as the claimant is concerned, because it is admitted that this liquor was made in New Orleans.

I might say that a good deal has been said about the hardship and injustice of condemning an article which once has been branded by the gager, but I do not think that that appeals very strongly to any one's sense of morality, because a gager is not a man who is to decide what is the trade-name of an article. He takes that largely from the distiller. He is not a dealer in liquor, nor is he a man of science who is to determine once for all, and incontrovertibly, whether it is what it is branded or something else.

I will now give you the instructions asked for by counsel for the United States. The first prayer is as follows:

The jury are instructed that if from the evidence they shall find that the word "whisky", as understood by scientific men, the liquor trade, and by the public generally, is confined to a distillate of grain, and shall further find that the contents of the barrels libeled in this case are a distillate of molasses, and that the said barrels were branded "Bourbon Whisky ", then the said barrels were misbranded, and their verdict must be for the libelant.

The second prayer has reference to the restricted meaning of "Bourbon Whisky ", as applying to whisky distilled in the State of Kentucky. It is as follows:

The jury are instructed that if they shall find from the evidence in this case that the phrase "Bourbon Whisky," as defined in the standard works of reference in use in this country, and as understood by scientific men, the liquor trade, and by the public generally, imports a liquor distilled in the State of Kentucky, and shall further find that the contents of the barrels libeled in this case were distilled at New Orleans, in the State of Louisiana, and shall further find that the said barrels were branded "Bourbon Whisky", then the barrels are misbranded, and their verdict must be for the libelant.

The third prayer has reference to what you may find from the evidence is the more general acceptation of the words "Bourbon Whisky", in case you find that the words do not necessarily require that it shall be made in Kentucky. The instruction is as follows:

The jury are instructed that if they shall find from the evidence that the phrase "Bourbon Whisky", as understood by scientific men, the liquor trade, and the public generally, is confined to a distillate of grain made from the mixture of fermented grain, of which mixture corn constituted the greater part, and shall find that the contents of the barrels libeled in this case are a distillate of molasses, and shall further find that the said barrels are branded "Bourbon Whisky", then the said barrels are misbranded, and their verdict. must be for the libelant.

I do not think there is anything further that I need say to the jury, except to remind you that there is no dispute at all as to the material out of which this distillate was made. The whole case, in my judgment, and I so instruct you, turns upon whether the general acceptation of the word "whisky means that it is made from grain. Of course, this liquor was not so made.

Further, in regard to Bourbon whisky, if the term "Bourbon Whisky" implies that the article was made of corn in greater part— not made of molasses, but made of grain of which corn was the greater part-then, of course, it was misbranded.

So, further, if you find that Bourbon whisky is confined to whisky made in Kentucky, and of grain, and that the larger constituent part must be corn, then, of course, this would not be Bourbon whisky, because it was not so made.

As to what the testimony has proved to your satisfaction are the proper meanings, accepted by the trade and by scientific men, of whisky" and "Bourbon Whisky ", those are facts to be found by you from the testimony, which I leave entirely to you. It is my duty to instruct you upon the law, and to leave the facts to be found by you.

UNITED STATES v. SCANLON

(District Court, N.D. Ohio, E.D., Nov. 27, 1908)

180 Fed. 485; N.J. No. 47

Information alleging violation of section 2 of the Food and Drugs Act. Tried by the court. Judgment of guilty.

TAYLER, District Judge (orally). A cursory examination of this label that is the only examination that the ordinary customer makes, and that is the examination which is controlling in a case of this kind-presents the suggestion, if it does not carry with it the absolute statement, that this bottle contains Ohio maple syrup; but a careful scrutiny discloses, between the red words "Ohio" above and "Maple Syrup " below, a blue word "Blended ", and then, below that, in smaller type, the statement that "This syrup is made from the sugar maple tree and cane sugar."

I think it was intended to convey the impression that there was a mixture, in the popular meaning of a mixture, of maple syrup and of a syrup which is made from cane sugar or New Orleans molasses or something of that kind, that people prefer to use rather than the heavier or thicker kinds of syrup; a kind of appropriate union of syrups that are used for a common purpose. At all events, the information conveyed by this label as one looks at it is that it is primarily a maple syrup, and then, upon a little closer inspection, that it is not exactly all maple syrup but that it has some syrup in it made from cane sugar. The label was evidently designed to go as far as it could in advertising the fact that maple syrup was there and still to comply with the pure food act.

Now, it would be very interesting to enter into this discussion, not exactly sophistical, but still drawing rather sharp lines of distinction between various conceptions of the meaning of the law and the chem

ical aspects of these various products of the maple tree; but I do not think it is necessary for me to go into it. It is not so much a question of chemistry as of popular comprehension. We would not have any pure food laws if we were all chemists, because then we would be able to find out for ourselves what the thing was we were buying; and, of course, the opportunity and suggestion of temptation to deception would be very much reduced if a man who sold knew that he was dealing with a person who could find out easily just what he was buying. It is not a question of chemistry in this case, any more than it is with butter. It is a question of what is the popularly recognized definition of maple syrup; and that undoubtedly is, and we do not need the chemists to testify to it, that it is the syrup produced from boiling down the sap that flows in the spring of the year from the live maple tree. It has a certain consistency, and, of course, a certain specific gravity, which a chemist can tell us about; but those persons who have used it know in a general way when it has a proper consistency and a proper specific gravity, as they certainly do whether it has the proper flavor.

So that, if this syrup is made, as Mr. Scanlon says it is made, by some treatment of the chopped-down maple tree, whereby he gets an enormously larger amount of what may be called maple saccharine than is obtained from the free flowing of sap from the live tree, that is not maple syrup which he gets from it. If his statement is trueand I have no right to question its truth, except that I can hardly believe him when he says he obtains so much-that he gets his maple syrup and maple sugar that way, that is not maple sugar which he makes, and, therefore, he is not permitted to make use of that word under the pure food act. It seems to me that is all there is in this matter for me to consider now.

It is an interesting question whether this is not a "blend." But I do not pass upon that. I pass upon the broad question and lay down the broad proposition that this label is misleading and is a violation of the law; that the contents of the bottle are not what the label manifestly and suggestively declares those contents to be; and, primarily, I think the fundamental fact is that it is not maple syrup. The people who buy maple syrup would be in a very different frame of mind if they knew that the so-called maple syrup that made this so-called maple blend was derived from a treatment of the wood of the maple tree after it was chopped down from that in which they are when they buy what they understand to be maple syrup made from the boiled-down sap drawn from the live tree. So I will have to find the defendant guilty.

UNITED STATES v. GRIEBLER

(District Court, E.D. Illinois, Nov. 30, 1908)

N.J. No. 37

Information alleging violation of section 2 of the Food and Drugs Act. Jury trial. Verdict of guilty.

WRIGHT, District Judge (charge to the jury). Gentlemen of the jury: In this case the Government charges the defendant that he

shipped and delivered for shipment from Trenton, in the county of Clinton, in the State of Illinois, to Carlyle Dairy Company, at St. Louis, in the State of Missouri, an article of food, to wit, a certain quantity of milk which was then and there adulterated by having mixed and packed therewith water so as to reduce and lower and injuriously affect the quality and strength of said milk, contrary to the statute, etc.

There are two counts in this information, but it isn't necessary to specifically call your attention to more than one, because, as I understand the prosecution, they are not claiming that the statute was violated but the one time.

The act of Congress makes it unlawful for a person to ship an article of food from one State to another State, or to deliver such article for shipment from one State to another State, which, at the time of the delivery, or shipment, was, or had been, adulterated. The adulteration to be contrary to the statute must be, first, if any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength; second, if any substance has been substituted wholly, or in part, for the article.

Before the Government can claim a conviction at your hands it must be proved by the evidence in the case beyond a reasonable doubt that the defendant is guilty as charged in the information. If, after a fair and impartial investigation, you have a reasonable doubt of his guilt, as charged in the information, then it would be your duty to acquit him. If, after the same investigation of all the evidence in the case, you have an abiding conviction of his guilt, then it would be your duty to convict him.

A reasonable doubt is not such a doubt as is engendered by imagination, or by an undue sensibility of the consequences of your verdict. Nor can you go outside of the evidence. A doubt must arise from a fair and impartial consideration of the evidence, and it is such a doubt as if interposed in the graver transactions of life it would cause a reasonable man to pause before acting upon it. Now, if you have such a doubt of the guilt of the defendant in this case as I have endeavored to define, you will acquit him. If you have an abiding conviction of the truth of this charge, then you will convict.

The real issue in this case is whether, under the evidence here, the milk, at the time it was shipped, or delivered for shipment, contained water. That is the charge in the information. It is not necessary for the Government to prove that the defendant actually put the water in himself, nor is it necessary to prove that he knew at that time there was water in the milk, if there was water in it. Under this statute, for the protection of the public-those who consume-a person who undertakes to ship food products must be held to know what it is he puts into commerce, must know at his own peril what it contains. It is sufficient if you believe he delivered the milk for shipment, or shipped it, and that there was water in it, and that the water was mixed therewith so as to reduce or lower or injuriously affect its quality or strength; and as to that question you know as much as any witness. It is not a matter for an expert. It is a matter of everyday knowledge as to whether water in the milk would reduce or lower its strength. Everybody knows that it does. So if you believe from the evidence that there was water in the milk you will convict the defendant. If you find there was no water in it you will acquit him.