3909. Adulteration and misbranding ol butter.   XT. S. v. Albert F. Lopez.   Pleas of guilty.?
Fine, $50.   (F. & D. Nos. 4944, 5139.   I. S. Nos. 21502-d, 2303-e.)
At the April, 1914, term of the District Court of trie United States of America for the?
Southern District of New York, the jurors of the United States within and for said dis??
trict, acting upon a report by the Secretary of Agriculture, upon presentment by the?
United States attorney for said district, returned two indictments against Albert F.?
Lopez, New York, N. Y., charging shipment by said defendant, in violation of the?
Food and Drugs Act, on April 27, 1912, from the State of New York into the State of?
South Carolina, and on July 16, 1912, from the State of New York into the State of?
Florida, of quantities of butter which was adulterated and misbranded. The first?
shipment was labeled: "V. Lopez & Co. New York, U. S. A. Packers of the celebrated?
Blue Ribbon Brand Butter Guaranteed Absolutely Pure." The second shipment was?
labeled: "Crescent Brand Butter Guaranteed Absolutely Pure Packed especially for?
Family use.    V. Lopez & Co. New York, U. S. A.    (Picture of cow and crescent)."
Analysis of a sample of the first shipment of the product by the Bureau of Chem??
istry of this department showed the following results: Water, 23.85 per cent; fat (by?
difference), 72.10 per cent; casein, etc., (by ignition), 1.38 per cent; ash, 2.67 per?
cent. Analysis of a sample of the product from the second shipment by said bureau?
showed the following results: Water, 19.20 per cent; fat (indirect), 74.10 per cent;?
casein, 2.10 per cent; ash, 4.60 per cent; total, 100.00 per cent; total solids, 80.80 per?
cent; sodium chlorid, 4.38 per cent. On the fat: Beichert-Meissl number, 26.10;?
iodin number, 40.12; refraction at 25? C, 1.4597; spoon test?fairly quiet, sputters a?
little.
Adulteration of the product in both shipments was charged in the indictments for?
the reason that a substance, to wit, water, had been mixed and packed with the?
article in such quantity as to reduce and lower and injuriously affect its quality and?
strength; further, for the reason that a substance, to wit, water in an excessive amount,?
had been substituted in part for the article, to wit, butter, and, further, for the reason?
that a valuable constituent of the article, to wit, butter fat, had been in part abstracted.?
Misbranding of the product in the first shipment was charged in one of the indictments?
for the reason that the statement "Butter Guaranteed Absolutely Pure," appearing?
on the label aforesaid regarding said article and the ingredients and substances con??
tained therein, indicated that the article was pure butter conforming to the legal?
standard for pure butter, whereas, in truth and in fact, said article was not pure'butter?
conforming to the legal standard for pure butter, but Avas an adulterated butter con??
taining an excessive amount of water; and, further, for the reason that the article?
was labeled and branded so as to deceive and mislead the purchaser, being labeled?
"Butter Guaranteed Absolutely Pure", thereby indicating that the article aforesaid?
was pure butter, whereas, in truth and in fact, it was not pure butter, but was an?
adulterated butter. Misbranding of the article in the other consignment was charged?
in the second indictment for the reason that the statement "Butter * * * Guar??
anteed absolutely pure ", appearing on the label aforesaid regarding the article and the?
ingredients and substances contained therein, was false and misleading in that it?
indicated that the article was pure butter conforming to the legal standard for pure?
butter, whereas, in truth and in fact, the article aforesaid was not pure butter con??
forming to the legal standard for pure butter, but was an adulterated butter containing?
an excessive amount of water; further, for the reason that the article was labeled and?
branded so as to deceive and mislead the purchaser, being labeled "Butter * * *?
Guaranteed absolutely pure", thereby indicating that the article aforesaid was pure?
butter, whereas, in truth and in fact, it was not pure butter, but was an adulterated?
butter containing an excessive amount of water.
It was further charged in the indictments that on October 20,1911, a criminal infor??
mation was filed in the United States District Court for the Southern District of New
510	
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I Supplement 9.
York, charging Aimee Lopez and Albert F. Lopez with a violation of the Food and?
Drugs Act, and that on February 26, 1912, the said defendants pleaded guilty to said?
criminal information and were sentenced to pay a fine of $10; further, that on January?
22,1912, a criminal information was filed in said United States District Court, charging?
said defendants with a violation of the Food and Drugs Act, and that on February 26,?
1912, said defendants pleaded guilty to said criminal information, and were sentenced?
to pay a fine of $10.
On May 14, 1914, the defendant entered pleas of not guilty to the indictments.?
On July 29, 1914, the cases having come on for hearing upon motions by defendant?
to quash the cotmt of each of the indictments setting forth the allegations relative to?
prior convictions under the Food and Drugs Act, said motions were denied, as will?
more fully appear from the following memorandum decision by the court (Grubb, /.):
A motion has been made by the defendant to quash the fifth count of two indict??
ments returned against him for violations of the Food and Drugs Act of June 30,?
1906, on the grounds that the said fifth count of each indictment improperly and ille??
gally contains allegations as to prior convictions under the Food and Drugs Act. It?
seems to be the proper practice to set forth in an indictment the allegations as to?
prior convictions of another offense. In the case of Graham v. the State of West Vir??
ginia, 224 U. S. 616, the court says on page 625:
" While it is familiar practice to set for.th in the indictment the fact of prior convic??
tion of another offense, and to submit to the jury the evidence upon that issue together?
with that relating to the commission of the crime which the indictment charges, still?
in its nature it is a distinct issue, and it may appropriately be the subject of separate?
determination. Provision for a separate, and subsequent, determination of his iden??
tity with the former convict has not been regarded as a deprivation of any funda??
mental right. It was established by statute in England that, although the fact was?
alleged in the indictment, the evidence of the former conviction should not be given?
to the jury until they had found their verdict on the charge of crime."
It may well be that this defendant would have the right to have the issue of his prior?
conviction tried by a separate jury, but that is a matter for the determination of the?
trial judge. In view of the decision of the Supreme Court in the Graham case, how??
ever, it would seem that the allegation as to a prior conviction was properly set forth?
in the indictment and, therefore, the motion to quash the fifth count of each indict??
ment is denied.
On February 18, 1915, the defendant entered pleas of guilty to the two indictments,?
and the court imposed a fine of $25 on each indictment, making an aggregate fine of $50.
D. F. HOUSTON, Secretary of Agriculture.?
WASHINGTON, D. C, June 8, 1915.
N. J. 3901-3930.]   SERVICE   AND  REGULATORY  ANNOUNCEMENTS.	511