F. & D. No. 2691.
I. S. No. 9547-c.	
Issued May 14, 1912.
United States Department of Agriculture,
OFFICE OF THE SECRETARY.
NOTICE OF JUDGMENT NO. 1335.
(Given pursuant to section 4 of the Food and Drugs Act.)
ALLEGED ADULTERATION OF ALMOND PASTE.
At a stated term of the Circuit Court of the United States for?
the Southern District of New York, in the Second Circuit, begun and?
held on the first Monday of July, 1911, the United States Attorney,?
acting upon a report by the Secretary of Agriculture, filed informa??
tion in said court against Henry Heide, alleging shipment by him, in?
violation of the Food and Drugs Act, on or about November 11, 1910,?
from the State of New York into the State of California of a quan??
tity of almond paste, which was alleged to be adulterated.. The?
product was labeled: " Eagle Brand Almond Paste for Macaroons?
Flavored with Apricot kernels New York. Warranted Pure?50?
lbs. Serial No. 631. Guaranteed under the Food and Drugs Act,?
June 30, 1906."
Analysis of a sample of said product made by the Bureau of?
Chemistry of the United States Department of Agriculture showed it?
to contain 5.7 per cent of commercial glucose. Adulteration was?
alleged for the reason that a certain substance other than almond?
paste, to wit, glucose, had been mixed with said article so as to reduce?
and lower and injuriously affect its quality and strength and had?
been substituted in part for said article.
On November 2, 1911, the case coming on for hearing, a jury was?
sworn and impaneled. Upon the introduction of the testimony of?
the witnesses both for the Government and the defendant, and the?
argument of counsel, the court, on November 3, 1911, charged the?
jury as follows:
CHARGE.
The COURT (MABTIN, J.) : Gentlemen of the Jury: This case stands like any?
other criminal case?a man is charged with the violation of a statute, a statute?
of the United States. Now, in order to convict him, find a verdict of guilty,?
you must find that from evidence that satisfies you beyond a reasonable doubt
27913"?No. 1335?12
Or, in other words, in all criminal cases, so sacred is our liberty and so well?
is it guarded under the law, that a man comes into court under the presumption?
of innocence, and that presumption obtains until it is overborne by evidence of?
guilt, beyond a reasonable doubt.
Now this man is charged with having: violated what is called and known as?
the Pure Food Act. And I simply repeat what I have already said in your?
hearing to counsel, that it shall be unlawful for any manufacturer to manufac??
ture within any territory of the United States any article of food or drug which?
is adulterated, or misbranded, within the meaning of this act. And then the?
word adulterated is defined, as has been read to you by the Assistant District?
Attorney, and the charge in this case is that the article which this man?
shipped?and it is conceded that he did ship it and put it into interstate com??
merce, so as to bring it within the purview of the law?the charge is, that this?
article so shipped was adulterated, in that a certain substance other than almond?
paste, to wit, glucose, had been mixed with said article, so as to reduce and?
lower and injuriously affect its quality and strength, and had been substituted?
in part for said article.
Now you must be satisfied beyond a reasonable doubt, in order to convict,?
that: this man did just what he is charged with doing in this complaint. So?
the question is one for you to determine under this evidence?that is, by the?
adding of this five per cent, if that is what the amount is, of glucose, mixing it?
as is termed here, did so reduce the product'as to lower and injuriously affect?
its quality and strength. That is the question for you to pass upon. It would?
not be adulterated unless it had that effect.
Now the cross examination of the defendant, as to not naming glucose, can?
only be considered as bearing upon the intent because he is not charged with?
misbranding these goods. There is no claim here that he has falsely represented?
certain articles and things to be in this that are not there, but what they do say?
is, that the adding of this glucose has injuriously and materially^ reduced its?
value. Now how do you- find that fact to be, on the evidence that has come into?
court here?what these people said about it?what the defendant himself has?
said about it. That is the question, gentlemen. That is a question, gentlemen,?
that you want to think of carefully.
It has been suggested that it won't drive this man out of business. Well,?
that may be so. But, a man having a business established, as the evidence?
shows that this man's business has been established, you should be careful?
before you pronounce him guilty. See to it that the evidence warrants you?
doing it, because by that decision you must of necessity affect his business.?
Take into consideration the whole history of this transaction; what was?
formerly used, and then withdrawn at the request and suggestion of the party?
having the Pure Food Act under administration, and the resorting to glucose,?
and whether glucose deteriorates, injures, is a matter for you to take into?
consideration, in view of the evidence that has come here upon the stand, and?
then say whether the adding of that glucose amounted to an adulteration, as?
charged in the complaint and defined in the statute.
Take the case, gentlemen.
Whereupon the jury retired and returned with a verdict of not
guilty.
JAMES WILSON,
Secretary of Agriculture.?
WASHINGTON, D. C., January 16,1912,
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