486 AIJTSrUAL REPORTS OF DEPARTMENT OF AGRICULTURE. 



Upon the question of a reasonable donbt, the court said that it- 

 is a doubt that is based upon reason, a doubt for which you can give a reason. 

 It does not mean every possible doubt, because it is almost impossible to estab- 

 lish a particular truth, and especially the truth of the assertions that rest in 

 opinions I'egarding men's ailments and what cures them to an exact certainty 

 and beyond all possibility of a mistake, but it does mean more than mere proba- 

 bility or mere preponderance of evidence. 



In the case of the United States v. 1038 Cases of Tobasco Catsup 

 (F. & D. Nos. 9414 to 16), instituted in the Eastern District of Mis- 

 souri, the court in discussing the sixth paragraph of section 7 of 

 the food and drugs act, in the case of food, said to the jury: 



Now, let me read it again: "If it consists in whole or in part of a filthy, 

 decomposed or putrid animal or vegetable substance." Now, the Congress, in 

 section G, based a reasonable application- of this section to the practical busi- 

 ness affairs of life. In such a case the Congress intended that it should apply 

 to the abolute term. =■■' * * But the word, '■'■'■ * * here, with which we 

 are principally interested in this trial is in its everyday use, and not in the 

 ' scientific sense. In the scientilic sense wine, or beer, would be absolutely pro- 

 hibited in this case; as you gentlemen all know the grain with which beer is 

 made and the grapes with M-hich wine is made are fermented. Again there 

 are lots of food products that the Congress— made out of i:)artially decomposed 

 vegetable matter, in some instances at least — that the Congress didn't intend 

 to prohibit. * * ■■' So, if we had to make tomato catsup out of tomatoes 

 which were not in part decomposed we could never make any tomato catsup, 

 l)ecause it woidd be a matter of impossibilty for anyone to engage in the manu- 

 facture of catsup, and there would be some decomposed tomato matter going 

 into the product. Tlie care with whicli you would have to conduct a business 

 of that kind would absolutely prohibit the business. So, what the Congress 

 meant — it meant this, that in the manufacture of tomato catsup, which is the 

 siib.iect of this, that the rule of reason should enter ; tliat is to say, a factory 

 that exercised a reasonable, prudent caution in collecting the tomatoes, and 

 assorting those that v.-ent into the cylinder so as to cut out any, unreasonably 

 so, of decomposed tomatoes — the manner of a reasonably prudent, careful, and 

 intelligent man, engaging in his affairs, would do ; that he be protectetl under 

 the l:iw, unless he became careless in his Imsiness and allowed rotten tomatoes 

 to go in there in. a manner that a reasonable, prudent man, making a product 

 for consumption of his own, would not do. 



In the case of the United States v. D. Auerbach & Sons (F. & D., 

 No. 7378) instituted in the Southern District of Xcw York, which re- 

 sulted in a mistrial and the subsequent entry of a nolle prosequi to the 

 information, the defendants were charged with shipping in interstate 

 commerce cand^^ in 30-pound i^ails labeled in part " Cliocolate Flavor 

 Pecan B Bons." The court charged the jury that it Avas immaterial 

 whether the consignee to whom the candy was shipped knew vrhat he 

 was getting or was deceived, and that — 



The i)urc food law is intended to protect the ultimate consumer, the general 

 public * *. When you come to consider what the ultimate consumer, the 



general public, would think, you hav(> to take into consideration there the 

 price at which it was sold, tlu> cliaraeter of the people that would jjrohabl.v 

 bu.v it, and wliut they would expect to get. ■• * You will lake into con- 



sideration all those facts and api)ly your knowledge as ivasonable busines.-^ 

 men to them. * * * 



You nuist now determine whether or not this particular product when it was 

 shipped was so colored as to conceal its infei'iority and give the impression 

 that it was something which it was not — that is the purpose of the pure-food 

 law, that things shall be sold for tvhat they are and not for what they are 

 not, and that they nnist not be adulterated or the inferiority concealed in any 

 way. If they are shijiped in intert;tate commerce, and they are adulterated 

 so that they appear to be something thai they are not, and the public is 

 thereby deceived, then of course that is a violation of the law. 



