true Ohio claret wine can possibly contain less than 0.2 [per cent] of tartaric acid even when aged to the extent of three years and under exacting filtration; that in the wines he has made he has never found it so low as that, but usually about 0.3, and even as high as 0.5; that in no condition, here shown to exist, or which we are justified in assuming, in connection with this discussion, can that tartaric acid disappear to any appreciable extent. The minimum of 0.2 is placed arbitrarily as a matter of extreme concession in the interest of justice, although he freely states that he does not believe it can fall that low in an authentic wine. In addition to his own manufacture of wines he has examined a large number of commercial samples and finds that the great majority corroborate his own experiments. It is true that in some a smaller percentage of tartaric acid is found, but they were, as has been said, from commercial samples not authenticated and subject to legitimate suspicion as to the methods employed in their manufacture. Dr. Robinson, the chemist employed by claimant, has analyzed a great many samples of the wines of commerce bought in the usual manner upon the market and otherwise unauthenticated and of unknown history. From such experiments he draws the deduction that the presence of tartaric acid is too inconstant to serve as a dependable test of purity. He also cites text books, compilations, etc., which do not affirmatively prescribe this test, and some of which do not disclose the presence of the percentage insisted upon by the Government. Dr. Alwood, in his rebuttal testimony, has to a very large extent explained and reconciled this apparent discrepancy. It may be sufficient to observe that none of the text writers submitted are shown to have been wine experts. Moreover, nearly all the data collected come from widely separated territories and involve conditions and methods which differ greatly from those to be found in the Ohio district. They also very greatly antedate the passage of the Food and Drugs Act. They concern a period when the objects to be obtained by that act were not prominently in mind and when the very practices may be presumed to exist which that law was enacted to remedy. We may likewise not ignore the possibility, if not the probability, that practices still exist, as exemplified in commercial products, that are in conflict with the provisions of the Food and Drugs Act. Experiments made from such products can in no sense compare with those made by Dr. Alwood with the sole object of establishing dependable scientific standards. As has been said, Mr. Krudwig testified that the grapes used were not quite up to the standard, in that they were a little light in color with a few berries on some of the bunches evidencing a slight effect of hail. They were, however, stated to be of fair quality and were up to the standard for that particular district for that year. This being so, their inferiority, if they were appreciably inferior, could not account for the low tartaric acid content, and it conclusively appears from the testimony that grapes a little underripe carry even a higher percentage of that acid. It must be remembered also that this wine was but a year old and had not been subjected to the severer processes of filtration applied by Dr. Alwood in his tests, which were made with wine at least three years old. A higher percentage of the characteristic fruit acid should be found in the younger wine. Dr. Robinson, on behalf of claimant, having stated it to be his opinion that tartaric acid in claret wine varied so greatly in amount that it should be disregarded as a test of purity, proceeded to detail other chemical properties by which the character of wine could be determined. The following questions and answers were propounded and returned: "The COURT. Doctor, in view of the matters which you have eliminated as proving nothing respecting the contents of the product and its relation to whether it was or was not a fruit juice, what have you left there in chemical analysis which stamps the product as the pure product of the grape? “Answer. Well, the total solids, the nonsugar solids, the ash and the character of the ash, the natural color, flavor and aroma. "The COURT. Laying aside the color, the aroma and that sort of thing, might not those other abstract properties which you have referred to be produced from other than grape or fruit products? "Answer. Well, that is possible to some extent. 'By counsel: Do you have any reason to question the accuracy of the Government chemists' analysis of this wine? "Answer. No, sir; not in the least. "Question. Have you ever found a single instance in which said grape juice did not contain tartaric acid? “Answer. Grape juice, as I said before, I never found a single instance in which tartaric acid was entirely out of grape juice.' If we accept the contention of the claimant in this regard these anomalies are presented: Tartaric acid is the characteristic acid of the grape; it is the predominant acid distinguishing the grape from other fruits. Nevertheless we are told that it is not necessarily found in any marked degree in a grape wine product. We are left, in the matter of chemical analysis, to other abstract properties which may be found as well in other than grape or fruit products. In other words, we may and must disregard the characteristic, distinctive, and predominant ingredient-the very essence as it were, of the grape. This is to say, that we are left without the most obvious and convincing means of identifying a true claret wine. I can not accept such a paradox. Other matters were dwelt upon in the testimony; notably, the pentosans and the alkalinity of the ash. I do not base my decision upon this branch of the testimony. It is sufficient to say, however, that its ultimate effect tends strongly to corroborate and confirm the conclusion based upon the crucial tartaric acid test. Wine experts were produced who applied the tests of taste and smell to the libeled product. The consensus of their testimony was that that product was not a claret wine. Claimant's explanation of this was that the wine had spoiled; that destructive acetic acid fermentation had set in to such an extent as to render such tests untrustworthy. This, so far as the court can perceive, is the full effect of what has been spoken of as the defense of acetic acid. The testimony does not justify the inference that the wine differed materially in acetic acid content at the time the first samples were withdrawn, compared with its condition on the date of shipment. The cooperage of the barrels from which the letter samples were taken was unimpaired. This subject, as dealt with by the chemists, requires no elaboration here. In view of all the circumstances, nothing in that defense accounts for the absence of the predominant acid of the grape as shown by the analyses. In further defense claimant produced two witnesses, Mr. Krudwig, a member of the claimant company, and Mr. Crathwal, its foreman, who testified positively that the contents of the barrels are Ohio claret wine and not pomace wine, in whole or in part. With respect to these witnesses, the court, in all kindness, must point out that their claim of scrupulous personal attention to every detail affecting this wine from the time the grapes went into the press until the shipment a year later, presents a remarkable departure from the ordinary and usual course of business, even at their own winery. Their recollection of each step taken, at a time so far removed from the actual occurrences, is not less remarkable. Their interest is, of course, conceded, and the fact that there were at that time in the winery at least 25,000 gallons of pomace wine, used, among other things, for blending purposes. To reject or in any sense to discredit the positive testimony of an individual witness is never a pleasant duty for the court; but it is the settled rule of the Court of Appeals of this circuit, and, I believe, in practically all Federal and State jurisdictions, that where the testimony of a witness is positively contradicted by the physical facts, neither the court nor a jury can be permitted to credit it. (Missouri, Kansas & Texas Ry. Co. v. Collier (C. C. A.), 157 Fed. 347.) If these barrels, otherwise shown to be intact, had been found to contain pork, no witness could be indulged in the statement that he personally packed them with beef. To my mind, the proof that the contents of these barrels are not an Ohio claret wine, as concededly defined, is not less positive and convincing. The testimony of Dr. Alwood and Dr. Hartmann as to the contents of these barrels, chemically considered, is not opinion testimony. It is scientific testimony based upon actual facts. By exhaustive experimentation they have determined, as other facts are determined, that grapes in this district produce a certain reasonably definite wine product. On the other hand, when they pronounced this to be a pomace wine, in the state of the record, they entered the realm of opinion testimony. The court accepts it as such, persuasive and conclusive in its effect as the circumstances may warrant. I am firmly of the opinion that the contents of these barrels, as shown by the analysis, are not and can not be Ohio claret wine. That they are pomace wine, in whole or in part, as defined in Food Inspection Decision No. 120, seems clearly established; because, in no other manner than by partial expression of the juice and subsequent fermentation, as described in that decision, can the absence of the characteristic grape content be explained. If the product has been reduced in quality by the addition of pomace wine, the charge in the libel is equally sustained. The Government has established its case in every substantial particular by a fair preponderance of the testimony, which must be credited by the court, and a decree will be entered accordingly. On October 10, 1914, the final decree of the court was entered, finding the product misbranded in conformity with the foregoing opinion, and it was ordered that the product should be delivered to said claimants, upon payment of the costs of the proceedings, and the execution of bond in the sum of $1,000, in conformity with section 10 of the act. CARL VROOMAN, Acting Secretary of Agriculture. 3530. Adulteration of canned peas. U. S. v. 4 Cases of Canned Peas. Default decree of condemnation, forfeiture, and destruction. (F. & D. No. 5465. I. S. No. 5286-h. S. No. 2037.) On or about December 8, 1913, the United States attorney for the Western District of Tennessee, acting upon a report by the Secretary of Agriculture, filed in the District Court of the United States for said district a libel for the seizure and condemnation of 4 cases, each containing 100 cans of peas, remaining unsold in the original unbroken packages at Memphis, Tenn., alleging that the product had been shipped from the State of New York into the State of Tennessee, the shipment having been received on or about October 3, 1913, and charging adulteration in violation of the Food and Drugs Act. The product was labeled: "Average net weight 13 oz. Jumel Brand, Very Fine Peas, Colored with sulphate of copper· - Packed in Belgium." Adulteration of the product was alleged in the libel for the reason that the product consisted in part of an added poisonous and deleterious substance, to wit, copper and [a] sulphate of copper, which is poisonous and deleterious. On May 27, 1914, no claimant having appeared for the property, judgment of condemnation and forfeiture was entered, and it was ordered by the court that the product should be destroyed by the United States marshal. CARL VROOMAN, Acting Secretary of Agriculture. WASHINGTON, D. C., January 13, 1915. 3531. Adulteration of canned peas. U. S. v. 3 Cases of Canned Peas. Default decree of con- On or about December 8, 1913, the United States attorney for the Western District of Tennessee, acting upon a report by the Secretary of Agriculture, filed in the Dis- trict Court of the United States for said district a libel for the seizure and condemna- tion of 3 cases, each containing 100 cans of peas, remaining unsold in the original unbroken packages at Memphis, Tenn., alleging that the product had been trans- ported from the State of New York into the State of Tennessee and delivered on or about October 2, 1913, and charging adulteration in violation of the Food and Drugs Act. The product was labeled: (On cans) “Alimentary Preserves-Very fine peas— Contents 143 oz. Jumel brand-Wespelaer Belgium-Colored with sulphate of Adulteration of the product was alleged in the libel for the reason that it consisted in part of an added poisonous and deleterious substance, to wit, [a] sulphate of copper, On May 27, 1914, no claimant having appeared for the property, judgment of con- demnation and forfeiture was entered and it was ordered by the court that the product ། 3532. Adulteration of desiccated eggs. U. S. v. 1 Barrel of Desiccated Eggs. Default decree of condemnation, forfeiture, and destruction. (F. & D. No. 5476. I. S. No. 5287-h. S. No. 2048.) On or about December 12, 1913, the United States attorney for the Western District of Tennessee, acting upon a report by the Secretary of Agriculture, filed in the District Court of the United States for said district a libel for the seizure and condemnation of 1 barrel containing 200 pounds of desiccated eggs, remaining unsold in the original unbroken package at Memphis, Tenn., alleging that the product had been transported from the State of Texas into the State of Tennessee, the shipment being delivered on or about December 2, 1913, and charging adulteration in violation of the Food and Drugs Act. It was alleged in the libel that the product was adulterated in that it was composed of an excessive number of organisms, including organisms of a gas-producing type; acidity of fat and ammonia nitrogen [were] excessive for good dried eggs; the appearance and color were poor; the odor was sour and very offensive; and that the product consisted of impure, decomposed, and deleterious animal matter. On May 27, 1914, no claimant having appeared for the property, judgment of condemnation and forfeiture was entered and it was ordered by the court that the product should be destroyed by the United States marshal. Carl VROOMAN, Acting Secretary of Agriculture. WASHINGTON, D. C., January 13, 1915. |