486 ANNUAL REPORTS OF DEPARTMENT OF AGRICULTURE. 



Upon the question of a reasonable doubt, the court said that it 



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

 It dees 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 regarding 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 ^^ 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 : 



NoAv, 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 6, based a reasonable application of this section to the practical busi- 

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

 to the abolute term. * * * But the word, " * * here, with which v/c 

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

 scientific sense. In the scientific souse 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 which wine is made are fermented. Again there 

 are lots of food products that the Congress made out of partially 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, 

 because it would be a matter of inipossibilty for anyone to engage in the manu- 

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

 into the product. The 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 

 subject of this, tliat the nile of reason should enter; that 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 protected under 

 the law, unless he became careless in his business 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 New 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 candy in 30-pound pails labeled in part " Chocolate Flavor 

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

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

 was getting or was deceived, and that 



The pure 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 have to t.ike into consideration there the 

 price at which it was sold, the cliaracter of the people that^ would probably 

 buy it, and what they would expect to get. '= * * You will take into con- 

 sideration all those facts and apply your knowledge as reasonable business 

 men to them. * * * 



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

 shipi>ed was so colored as to conce^d its inferiority 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 what they are and not for what they are 

 not, au(.l that they must not be adulterated or the inferiority concealed in any 

 way. If they are shipped in inter i;tate commerce, and they are adulterated 

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

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



