17274. Adulteration of apples.    V. S. v. 630 Baskets  of Apples.    Tried to
the court  and a jury.    "Verdict for  the  Government.    Motion  for 
new trial sustained.    Decree  of condemnation  entered.     (P.  & D.
No. 21338.    I. S. No. 12526-x.    S. No. C-3041.)
On or about October 23, 1926, the United States attorney for the District of 
Kansas, acting upon a report by the Secretary of Agriculture, filed in the Dis- 
trict Court of the United States for said district a libel praying seizure and 
condemnation of 630 baskets of apples at Hutchinson, Kans., alleging that the 
article had been shipped by F. L. Martin from Clifton, Colo., on or about October 
15, 1926, and transported from the State of Colorado into the State of Kansas, 
and charging adulteration in violation of the food and drugs act. On December 
7, 1926, an amendment to the said libel was filed.
It was alleged in the libel, as amended, that the article was adulterated in 
that it contained an added poisonous ingredient, to wit, a compound of arsenic 
and lead, which might have rendered it injurious to health.
On March 21, 1927. F. L. Martin, Hutchinson, Kans., having appeared as 
claimant for the property and having filed an answer to the libel denyng the 
Adulteration of the product, the case came on for trial before the court and a 
jury. The defendant and the Government introduced testimony, and counsel 
presented arguments to the court. The court summed up the case with the 
following charge to the jury (Pollock, J.) :
" Gentlemen of the Jury: This case has now proceeded to that point at 
which it becomes the duty of the court to charge you as to the law that will 
govern you upon your deliberations upon a verdict in this case. You under- 
stand, in our courts of justice in this country, where matters are heard and 
determined as this case is being tried, the responsiblity for the due and proper 
administration of justice under the law is equally divided between the two 
bodies. While that responsibility is equal, it is different in kind. It is the 
duty of the court to declare the law and the duty of the jury to take the law 
precisely as declared by the court, and the jury does end must trust the 
court to correctly declare the law. If any mistake is made in a matter of law, 
that is the mistake of the court for which the jury is not responsible. On 
the other hand, the jury and the jury alone is the sole judge of the weight of 
the evidence, the credibility of the witnesses and what facts are proven in 
the trial of the case from the evidence that is offered and received in evidence. 
And, so long as in our courts of justice, the jury takes the law as declared 
by the court, and takes and finds the true facts in the case and unite the 
same in their verdict returned, just so long do we have a proper administration 
of justice under the law.
" Again, it is the duty of the court to define the issue or issues in a ease 
being tried. By that I mean to state so clearly that no juror can fail to under- 
stand precisely what it is that is to be determined by the verdict when rendered 
in the case. Now, what is this case? The Government here is proceeding 
under what is known as the pure food and drug act enacted by the Congress 
of the United States, and enacted, like so many laws are, in pursuance of what 
is known as the Commerce Clause of our Constitution. That is, Congress 
has taken to itself, or, was really given by the States in constitutional con- 
vention the power to regulate commerce among the States and with the Indian 
tribes. Now the Government contends in this case that the defendant, Judge 
Martin, shipped from Colorado a certain carload of apples which he had 
raised out there in his orchard, in interstate commerce into Kansas from the 
State of Colorado, and that these apples had been by addition thereto of 
arsenic [arsenate] of lead, I understand a poison, that these apples had been 
adulterated in such manner that they might be deleterious to human health if 
consumed as found. Now this proceeding is what is known under the pure food 
and drugs law as a libel. Suit is brought for the purpose of determining 
whether these apples shall be condemned and destroyed as a food product.
" It is under section 10 of this act, as follows: That any article of food, 
drug, or liquor that is adulterated or misbranded within the meaning of this 
act, and is being transported from one State, Territory, District, or insular 
possession to another for sale, or, having been transported, remains unloaded, 
unsold, or in original unbroken packages, or if it be sold or offered for sale 
in the District of Columbia or the Territories, or insular possessions of the 
United States, or if it be imported from a foreign country for sale, or if it is 
intended for export to a foreign country, shall be liable to be proceeded against 
in any District Court of the United States within the district where the same 
is found, and seized for confiscation by a process of libel for condemnation.' 
And that is what we will inquire into here. These apples were found in the 
jurisdiction of this court and by the Government were libeled for the purpose 
of having them condemned. Now, the object and purpose of Congress in the 
enactment of this pure food and drugs act was the preservation of the health 
of people, and a very right kind of an act. The defendant in this case admits 
that he raised these apples in the State of Colorado; that in that climate the 
apple trees-bearing trees-must be sprayed with some poisonous solution in 
order that apples may be grown that are fit for use at all. He admits that 
he did use the material, a liquid compound that is used in that section of 
the country, sold and used for the purpose of bringing these apples on the 
trees to maturity, and that he did after these apples had matured on the trees, 
up until picking time, that he picked them, caused them to be picked, and 
shipped them to himself in Hutchinson, Kans., to his warehouse there, and 
he contends that at that time they were not ready for use as apples. That 
those apples which he did ship for use or sale that he caused them to be
wiped or washed, washing all possible part of this poisonous solution of arse- 
nate of lead off of them so there could be no question in that regard. Now, 
you will note that the section under which we are proceeding here conditions 
that these shipments made in interstate commerce shall be for sale, and if 
there was sufficient poisonous material upon these apples when they were 
shipped in interstate commerce that it might become deleterious to human 
health in eating them, if they were shipped for sale or by the shipper intended 
for sale, or offered for sale, then they ought to be condemned and destroyed. 
However, there is a provision in regard to this act which has just as much 
application as the part which I have quoted, and that is what this adulter- 
ation is.
" Section 7 of the act provides: That for the purposes of this act an article 
shall be deemed to be adulterated: In case of drugs so and so; this; is not 
drugs, not have to read that. In the case of confectionery, candy and so on, 
this has nothing to do with that; but in the case of food. First. If any sub- 
stance has been mixed and packed with it so as to reduce or lower or injuri- 
ously affect its quality or strength. Second. If any substance has been sub- 
stituted wholly or in part for the article. Third. If any valuable constituent 
of the article has been wholly or in part abstracted. Fourth. If it be mixed, 
colored, powdered, coated, or stained in a manner whereby damage or infe- 
riority is concealed. Evidently it was not under those. But it is, I suppose, 
the Government proceeding on the idea it was adulterated as provided in the 
fifth. Fifth. If it contain any added poisonous or other added deleterious 
ingredient which may render such article injurious to health: Provided, That 
when in the preparation of food products for shipment they are preserved by 
any external application applied in such manner that the preservative is neces- 
sarily removed mechanically, or by maceration in water, or otherwise, and 
directions for the removal of said preservative shall be printed on the covering: 
or the package, the provisions of this act shall be construed as applying only 
when said products are ready for consumption.
" Now, it is the contention of Judge Martin, while admitting the spraying of 
these trees with this arsenate of lead, and the statement, that he was not 
shipping these apples to market, that they were not ready for food; but his 
contention is that he was shipping them to his own warehouse and to be there 
kept until they reached that condition when they could be put upon the market 
for food, and at which time the lawv as he says, would apply, but they were 
not at this time ready for food as an edible.
" This is a very practical world. We have to live a practical life. And 
amidst all of these numerous regulations we have to still live a practical life. 
If Judge Martin did anything in this case with these apples whereby the 
health of individuals might be deleteriously affected, then the apples ought to 
be condemned. But, while these apples were handled in interstate commerce, 
if they were so treated not as a food product or not with any intent of offer- 
ing as a food product, if he kept them under his control so they could not go 
into the hands of others to be used, and affect them injuriously, then he had a 
right to deal with them in that practical way. For, suppose the Government 
should admit here that the purpose of shipping them-not only in interstate 
commerce-that they not only were shipped in that manner but suppose he 
were shipping them to feed his hogs; it was not hogs the Government was 
looking after when it enacted this law and the Government wouldn't have any 
concern whether they were good for individuals or not if they are shipped to 
and fed hogs, that would be the individual's business and not the Government's. 
But if anything is the matter, if it was not in good faith intended that these 
were not ready for the market and should not go on the market, then you 
would find the defendant guilty, if you believe the amount of poisonous prod- 
ucts added in this case was deleterious to human health. So that is the way 
I am going to leave that question to you in this case, of which fact you are 
the sole and exclusive judges. You will take the matter and determine it in 
the light of the law as I have given it to you."
Mr. MCFABLAND : " Your Honor, I would like to make one correction; I think 
the jury probably gets the wrong interpretation; as I understand, Judge Martin- 
is not the defendant, but the claimant of the apples."
The COUBT : " That is true; for all purposes he is the owner of the apples. 
This is a proceeding against the apples themselves. There is, I may say, a 
criminal provision of this law under which if the Government is correct, de- 
fendant Martin might have been prosecuted and punished as a criminal, butr- 
that is not relied on in this case."
Mr. MCFAELAND : " I would like to save an exception on the instruction, if
-they were so treated as a food product and remained in the hands of Judge
Martin, he would have the right to deal with them in a practical way.   And I
would like to request your Honor to give the instruction No. 10 mentioned in
:my request here."
The COURT : "' I forgot to mention, there have been some requests to charge, 
but I have embodied what I deem to be the law in what I have given, and 
therefore have refused the requests made." 
Mr. MCFAELAND: "Your Honor refuses our requests in toto?" 
The COURT. "Yes."
Mr. MCFAELAND : " I want to save an exception on that.   I think it should 
be shown to the jury in the event they do find these apples are adulterated,
there is a proceeding where "
The COUET: "The question now is, whether we are going to condemn the 
-apples because adulterated and injurious to human health."
Mr. MCFAELAND : " I thought Your Honor's instruction they might be de- 
stroyed might be prejudicial.   I would like to save an exception on that."
On March 22, 1927, the jury returned a verdict finding that the apples 
-?were adulterated as alleged in the libel of information. The claimant there- 
upon filed motions for judgment notwithstanding the verdict and for a new 
trial. On January 31, 1928, the court overruled the motion for judgment not- 
withstanding the verdict and sustained the motion for a new trial. The case, 
however, was not retried.
On April 25, 1930, final decree was entered adjudging the product adulterated 
as alleged in the libel and ordering that it be condemned without costs to the 
-claimant.
ARTHUR M. HYDE, Sewetary of Agriculture.