Now, the claimant says that not only is it not so, but that it is much more than true that the Government has not met the contention of showing that this label indicates a foreign product, because the claimant says that the label clearly indicates a domestic product, and the claimant's counsel points to certain labels. Now, the claimant says that it is generally true of foreign labels, labels that are clearly intended to represent goods that are a foreign product, that they have a volcanic hill, a peaked hill, with smoke issuing from it, and that the hills represented here in the label brought before you are flattened, and that they are distinctly different hills; that the difference is so conspicuous that any man must see at a glance that it is a different scene, that they are different hills-in other words, that it is an American view that is represented, that the hills represent what you would naturally expect in an American hill, and that the wheat field is represented as showing sheaves such as appear in America, and as do not appear in Italy.

The claimant says further, that the label contains upon it what is not found, at least generally, in foreign labels; that it is not at all a foreign label so far as the guaranty of the manufacturer is concerned; and that the words "Mosca Brand" clearly are no designation by Italian words of an Italian brand, indicating that it is a brand made in Italy; that the English word "Brand" is used, whereas in the Italian labels Italian words are used; and that there is nothing in the label in question brought before you which tends to deceive or would be likely to deceive the average intelligent man into thinking that he was buying under that label a foreign product.

Now, here the burden is upon the Government. Have they, on the whole, induced the belief in your minds that this label is calculated to deceive a reasonably intelligent man into believing that that label signifies a foreign product? If you find by a preponderance of evidence that it is, then you find for the Government; if you fail to find by a preponderance of evidence that it is such, you find for the claimant.

Now, gentlemen, I think that I have given you as clearly as I can the questions of fact, which are very simple and very clear. The case has been tried with great clearness and ability, as I said. In many cases the court allows, sometimes more than it ought to, things to come into a case that do not assist the jury any in coming to their conclusions; and so it is the duty of the court to direct the attention of the jury, and direct it as clearly as it can, to the issues which are to be determined, which I have tried to do in this case. Now, gentlemen, the case has been well tried, and there is no reason why you should not agree very promptly upon the questions before you.

The verdict is in the form of questions to be answered by the jury The questions are as follows:

1. Is the label such as to mislead a reasonably intelligent man into believing that the goods to be sold under it did not contain artificial coloring matter, when in fact they did?

2. Did the 175 boxes of macaroni in this case contain a substantial amount of coloring matter?

3. Is the label misleading in that the picture and scenes thereon are such a statement, design, and device as would lead a reasonably

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intelligent purchaser to believe that the goods sold under it were of foreign origin?

Under each of these questions is the word "Answer." The jury will direct their attention to each question and decide whether the question shall be answered by "Yes" or "No." The foreman is to write the word "Yes" or "No," in accordance with what the jury shall find, after each question, and sign the verdict at the place indicated at the bottom of the paper.

The officer may attend the jury. The counsel will see to it that all exhibits go to the jury room.

UNITED STATES v. C. F. BLANKE TEA & COFFEE CO.

(District Court, E.D. Missouri, Jan. 10, 1913)

N.J. No. 2493

Information alleging violation of section 2 of the Food and Drugs Act. Jury trial. Verdict of not guilty.

DYER, District Judge (charge to the jury). This inquiry, in my opinion, is limited to a very narrow compass.

What appears upon these boxes or cartons appears in this information, and the information charges in each count substantially the same thing. I will read from the information what appears upon these boxes or cartons:

One Pound Blanke's Kafeka. The original malted grain coffee. A Godsend for the Sick and Convalescent. A Nourishing and Health Giving Bread in Liquid Form. Manufactured by C. F. Blanke & Co., St. Louis, U.S.A.

Blanke's Kafeka is the nearest approach to coffee ever put on the market. It has all the merits without any objectionable features. It makes a pleasant, healthful beverage, strengthens without stimulating, satisfies without shattering the nerves. Especially recommended for children.

One Pound Blanke's Kafeka. The original malter grain coffee. Nutritious, Palatable, Wholesome. A Health Food as well as a Table Beverage. Aids Digestion and makes Rich Healthy Blood. Manufactured by C. F. Blanke & Co., St. Louis, U.S.A.

Then follow the directions upon each as to how to use it.

The information then charges that the statements I have just read, and which were contained upon said package and label, were false and misleading, and that the

said product was then and there labeled and branded so as to deceive and mislead the purchaser thereof in this: that said product is so labeled as to lead the purchaser thereof to believe that said product was composed wholly of grains and cereals and was a substitute for coffee, whereas in truth and in fact said product contained and consisted of about ten percent (10%) of a low grade of coffee, including a considerable amount of coffee chaff and other refuse, and was not composed wholly of grains or cereals, but was a mixture of cereals, low grade coffee and coffee screenings.

That charge brings this case, as I have said, into very narrow limits. I am not going to comment upon the testimony given by the witnesses in this case. It is sufficient to say that the Government has introduced witnesses who have testified that the contents of these packages contained coffee and caffein.

Upon the other hand, the defense shows by its own testimony that there is no coffee or caffein in these packages. It has introduced here as witnesses the president and vice president of this defendant company. It has also introduced the miller, or the man who has charge of making this preparation.

You have heard the testimony of the Government's witnesses, saying that coffee is contained in these packages, and you have heard the testimony of the defendant's witnesses saying there is no coffee contained in the packages. If you find from the evidence in the case that, as charged in this information, coffee was used in this product, then it is misbranded within the meaning of the Food and Drugs Act. If you find upon the other hand, that there was no coffee and that coffee was not used in this product, then there is no misbranding of this article by the defendant company.

So at last the case is narrowed down to the question: Was there coffee used in this product, or was there not coffee used in this product? If there was, as I have said, then this is a misbranding of the article contained in the packages. If there was no coffee in it, then it is not a misbranding of the article. In my judgment, that is all that is inquired into. You are not asked to go into the question of whether this is a good, bad, or indifferent product. There is no charge of that kind. The charge is that in the branding of this article, the customer purchasing it would be misled or deceived by what appears upon the box or carton; that is, as is charged in this information, the purchaser would think it was wholly of cereal and not of coffee, and that it was a substitute, the nearest to coffee, that could be made.

It is for you to say which side of this testimony you will take as being true. If the Government's witnesses are right, and you believe their testimony beyond any reasonable doubt in the matter, then your verdict should be a verdict of guilty against this corporation. If, upon the other hand, you believe the statements made by the defendant and its employees, then your verdict should be not guilty, under this information.

This information, gentlemen, contains two counts and is a criminal information; that is to say, it charges a specific offense which is and must be considered criminal in its character. The burden of proof in this case, as in all cases of like character, rests upon the Government, and that burden does not shift during the entire trial. It is still upon the Government to prove to your satisfaction, beyond any reasonable doubt, what is alleged in this information to be true, to wit, that coffee was contained in these packages.

The defendant is presumed to be innocent and that presumption in this case, as in all cases of a criminal character, is to be maintained throughout the entire trial and until it is overcome by evidence that satisfies you beyond a reasonable doubt that the defendant is guilty. A reasonable doubt is such a doubt as would arise from all the testimony in the case, and such a doubt as would influence a man of ordinary business capacity in determining important issues.

If you are satisfied beyond any reasonable doubt that this defendant sent out these pacakges with the label on it that has been read in evidence, when in truth and in fact the product contained

coffee, then, as I have said, your verdict will be in favor of the Government and a verdict of guilty against the defendant. If you are not satisfied beyond a reasonable doubt that this is true, then it is your duty to give the defendant the benefit of the doubt and return. a verdict of not guilty.

That is all I can see in this case, gentlemen, and you may take the case, together with the indictment. The clerk has prepared a form of verdict which you may sign. If you find the defendant not guilty, insert the word "not" before the word "guilty" as contained in this form.

UNITED STATES v. F. B. WASHBURN & CO.

(District Court, D. Massachusetts, Jan. 10, 1913)

N.J. No. 3275

Information alleging violation of section 2 of the Food and Drugs Act. Jury trial. Verdict of guilty.58

The following charge was delivered to the jury:

DODGE, District Judge: Mr. Foreman and Gentlemen: The Government charges against this defendant two offenses under the Pure Food Law. The first offense, as charged, was the offense of adulteration. Afterward an amendment was filed, and the other charge of misbranding added. You will be asked for a verdict on those two charges separately. You will be asked when you come in what your verdict is on the first count, charging adulteration-" Do you find the defendant guilty or not guilty on the first count?" That will mean adulteration. You will remember that the first count is the charge of adulteration; the second count is the charge of misbranding, and after you have given your verdict on the first count you will be asked. "How say you as to the second count? Is the defendant guilty or not guilty?" And that will be, Do you find him guilty or not of misbranding?

As long as the charges are presented in that order by the Government, I will deal with them in that order. I will say first as to both these charges that the burden is upon the Government to prove to you that the defendant is guilty beyond a reasonable doubt. You must find the evidence such as to satisfy your minds beyond a reasonable doubt of the defendants' guilt of the charge before you can find them guilty of either charge. You will consider the two charges separately, and you will ask yourselves whether or not you are satisfied beyond a reasonable doubt by the evidence you have listened to that the defendant is guilty of this charge, whichever it is that you are considering at the time. As you know, gentlemen, a reasonable doubt means such a doubt as reasonable men, making a proper exercise of their reason, allow to affect their decision upon the important affairs of their own lives. It does not mean a mere fanciful, imaginary, or frivolous doubt, of course. But if as to either of these charges the evidence leaves your minds still affected

58 Reversed in part, affirmed in part, F. B. Washburn & Co. v. United States, p. 654, post,

by a reasonable doubt as to the defendant's guilt, you are to give the defendant the benefit of that doubt.

Take now the charge of adulteration. Are you satisfied beyond a reasonable doubt that these so-called macaroons which the defendant admits having shipped in interstate commerce under the label which has been repeatedly read to you in this case, and in the container or box which you have seen, were adulterated in that a substance, to wit, glucose, had been mixed and packed with them so as to reduce, or lower, or injuriously affect their quality or strength? That is the question for you on the charge of adulteration. Now, in considering that charge I think you may leave out the question whether they are properly called macaroons or not, and consider that they are macaroons notwithstanding that they have cocoanut in them. The Government has not charged that they are adulterated because a substance, to wit, cocoanut, has been mixed with them; it charges that they are adulterated because a substance, to wit, glucose, has been mixed with them so as to reduce, or lower, or injuriously affect their quality or strength. It is admitted that glucose was mixed with them, that glucose is an ingredient in them. Are you satisfied beyond a reasonable doubt that the admixture of glucose is such as to reduce, or lower, or injuriously affect their quality or strength?

Now, the Government's claim upon that question is this, that these so-called macaroons ought to be made of cocoanut, or almond, whichever it is, white of egg and sugar and nothing else, and that any admixture of glucose reduces, or lowers, or injuriously affects their quality or strength, and you have heard the Government's evidence on that question. According to the witnesses for the Government, these cakes should have been composed of almond, or cocoanut, and sugar and white of egg; there should not have been any glucose in them at all. On the other hand, you have heard the defendant's evidence, which tends to show that using glucose with the sugar not only does not reduce, or lower, or injuriously affect their quality or strength, but in some respects it improves it.

The Government's witnesses have told you that glucose is not as sweet as sugar; I don't understand that there is any dispute on that point; glucose is only three-fifths as sweet as sugar. The defendant's evidence is, however, that notwithstanding that fact there is such a compensating advantage over the loss in sweetness that on the whole it cannot be said that mixing glucose in the composition of these cakes reduces, or lowers, or injuriously affects their quality or strength.

Now, that is the problem for you under the charge of adulteration. Are you or are you not satisfied on the whole evidence, and satisfied beyond a reasonable doubt, that the admitted admixture of glucose in this case was such as to reduce, or lower, or injuriously affect their quality or strength? If you are, but not otherwise, your verdict will be "guilty" on the charge of adulteration. If you are not, your verdict will be "not guilty."

I pass now to the charge of misbranding. The defendant admits that he shipped these cakes, or whatever we call them, labeled as you have seen, in that container, and in interstate commerce. Now, they were misbranded, under the Food and Drugs Act, sometimes called the Pure Food Law, if they were labeled so as to deceive or mislead the