NOTICE   OF JUDGMENT  NO. 2098.
SUPPLEMENTARY TO NOTICE OF JUDGMENT NO. 835. 
(Given pursuant to section 4 of the Food and Drugs Act.)
ADULTERATION  AND  MISBRANDING  OF  WHITE  PEPPER.
On or about October 10, 1910, Jacob Frank, Charles Frank, and 
Emil Frank were found guilty of a violation of the Food and Drugs 
Act, viz, the shipment, on or about December 16, 1908, from the 
State of Ohio into the State of Nevada, of a quantity of white pepper 
which was adulterated and misbranded, and were sentenced to pay 
a fine of $50 and costs by the District Court of the United States for 
the District of Ohio. On November 9, 1910, said defendants appealed 
to the United States Circuit Court of Appeals for the Sixth Circuit from 
the decision of the District Court, and on December 5, 1911, the 
judgment of said District Court was affirmed in the Circuit Court of 
Appeals, as will appear more fully from the following opinion by the 
court (Knappen, O. J.):
The appellants were informed against under the Food and Drugs Act of June 30, 
1906 (34 S. L., 768), for shipping in interstate commerce an article of food labeled 
"Perfection Mills Compound White Pepper," alleged in separate counts to have been, 
respectively, misbranded and adulterated. The alleged adulteration consists in the 
fact that the article contains only about 65 per cent* of white pepper, the remaining 
35 per cent, being a corn product, which is alleged to have been so mixed and packed 
with the pepper as to reduce and lower its quality and strength. As the corn product 
was of such a nature as not to constitute adulteration if properly branded, we may, 
with propriety confine our attention to the charge of misbranding.
The information charged that the article was labeled and branded as follows: 
"Perfection Mills Compound, White Pepper,",in large and plain letters, and about 
one inch thereunder, the following words, to wit, "Composed of Ground White Pep- 
per and Ground Cereals," in small and inconspicuous type, "so placed upon said 
label as not to be readily noticed by the purchaser." The information was demurred 
to as stating no offense under the act in question or under the laws of the United 
States. The demurrer was overruled. Thereupon a jury was waived by agreement 
of counsel.
A trial was had before the court upon an agreed state of facts (except in one par- 
ticular hereafter mentioned) whereby the defendants, pleading not guilty to the 
charge in the information, admitted the fact of the alleged shipment in interstate 
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commerce, also that the article contained 65 per cent, of ground white pepper, and 
about 35 per cent of ground cereals, and that it was labeled, in large type "Perfection 
Mills Compound White Pepper," and in smaller type "Composed of Ground White 
Pepper and Ground Cereals"; also in substance, the purchase of a sample can by an 
inspector of the Bureau of Chemistry of the United States Department of Agriculture, 
its analysis by an analyst of that Department, and its possession by the United States 
District Attorney for use on the trial.
The Government admitted on the trial that the words " Composed of Ground White 
Pepper and Ground Cereals'' are in type larger than the size required by Regulation 
17C of the rules and regulations passed in conformity with the Food and Drugs act, 
and that the article of food contained no added ingredients poisonous or deleterious 
to health. The package was submitted to the court" so as to display the label thereon'' 
and is returned with the bill of exceptions. The defendants then moved to dismiss 
the information, and for judgment in their favor, upon the grounds contained in the 
demurrer to the information. The motion was denied. The trial court held that the 
label was not in compliance with the law, found the defendants guilty and imposed 
a fine of $50.
Upon the argument in this court, defendants urged that the information was improp- 
erly filed, and should be dismissed for that reason, upon the authority of United 
States v. 20 Cases of Grape Juice (C. 0. A. 2) 189 Fed., 331, where it was held that in 
case the district attorney acts solely in pursuance of the report of the Secretary of 
Agriculture, under sections 4 and 5 of the food and drugs act, the notice and hearing 
provided by section 4 are conditions precedent to the filing of the information; such 
notice and hearing not appearing in this case. It would be enough to say that this 
proposition is not properly before us from the fact that no motion to dismiss for this 
reason was presented below, nor is the question raised by any pleading or presented 
by assignment of error. We do not, however, construe the information as showing 
that it was filed without investigation by the district attorney, or solely by authority 
of sections 4 and 5 of the act.
The fact that the case was finally heard by the court without a jury raises the ques- 
tion of the effect of the judgment when presented for review. By R. S. Sec. 566 
(U. S. Comp. St. 1901, p. 461), the trial of issues of fact in the District Court is (with 
certain exceptions not material here) required to be by jury; and section 649 (page 
25) which provides for a waiver of jury in the Circuit Court, has no application to the 
District Court. The result is that if the offense for which the defendants were tried 
amounts to a crime, as distinguished from a petty offense, it could, under Section 2 
of article 3 of the Constitution of the United States, be tried only by a jury; and, if 
not so tried, the judgment would be a nullity and require reversal. On the other 
hand, if the offense is merely a "petty offense" the trial under waiver of jury would 
amount to an arbitration as to the questions of fact involved; and it would result that 
the court's conclusions of fact could not be reviewed here, and we would have no 
power to inquire into the sufficiency of the evidence to support the conviction, nor 
any question of law aiising out of or upon the evidence. United States v. L. & N. By, 
Co. (C. C. A. 6) 167 Fed., 306, 93 C. C. A. 58; Low v. United States (C. C. A. 6) 169 
Fed., 86-88; 94 C. C. A. 1; Rogers v. United States, 141 U, S. 548, 12 Sup. Ct. 91, 35 
L. Ed., 853.
However, if the submission is upon an agreed state of facts, leaving for determina- 
tion only a question of law arising thereon, the determination upon that question of 
law is reviewable. Henderson's Distilled Spirits, 14 Wall., 44, 20 L. Ed., 815. Coun- 
sel agree that the offense here charged is merely a "petty offense." Construing, as we 
do, section 2 of the food and drugs act, as providing for no imprisonment for the first 
offense, but merely for a fine not exceeding $200, we agree with the counsel. Callan 
v. Wilson, 127 U. S. 540, 8 Sup. Ct., 1301, 32 L. Ed., 223; Schick v. United States, 
195 U. S. 65, 24 Sup. Ct., 826, 49 L. Ed., 99.
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Was the case finally heard solely upon an agreed state of facts so as to involve only 
a question of law? We think not. It is true that the case was heard in part upon an 
"
agreed statement of facts," the substance of which has been before set out. But 
this statement contained no reference to the allegations made in the information that 
the words "composed of ground white pepper and ground cereals" were in "small and 
inconspicuous type so placed upon said label as not to be readily noticed by the 
purchaser" as well as the statement "that the label and branding as above set forth 
was calculated and intended to deceive and mislead the purchaser thereof." On 
the other hand, the package containing the pepper was submitted to the court upon 
the trial " so as to display the label thereon"; and we are unable to determine from the 
record that the court did not, in finding the defendants guilty take into account 
the relative size and prominence of the type of the letters following the first part of 
the label, in connection with the allegations in the information relating thereto, and 
draw inferences of fact therefrom. For this reason, we think the final judgment 
embraced the determination of a question of fact, which is not reviewable here. But 
the ruling upon demurrer to the information is still open to review, and its considerate 
tion seems to sufficiently present the meritorious question in the case.
Regulation 17e adopted for the enforcement of the Food and Drugs Act, provides 
that "an article containing more than one food product or active medicinal agent is 
misbranded if named after a single constituent." Defendants challenge both the 
validity of this regulation and its application to this case. In the view we take of 
the case, we have not found it necessary to consider either of these questions.
By section 8 of the act an article of food is declared to be misbranded "Second, if it 
be labeled or branded so as to deceive or mislead the purchaser," with the proviso 
attached to the fourth subdivision of the section that an article not containing any 
added poisonous or deleterious ingredients shall not be deemed to be adulterated or 
misbranded, and "Second, In the case of articles labeled, branded, or tagged, so as to 
plainly indicate that they are compounds, imitations or blends, and the word 'com- 
pound,' 'imitation' or 'blend' as the case may be, is plainly stated on the package 
in which it is offered for sale.'-' We assume, for the purposes of this opinion, that if 
the statement of the ingredients of the "compound" were printed in type as large and 
prominent as that used in the primary label or brand, there would be no misbranding. 
But the information alleges the contrary of this, and that the branding was "calculated 
and intended to deceive and mislead the purchaser." Unless, therefore, the term 
"
compound" on the label naturally implies that the article is a "compound" of white 
pepper and some ingredient or ingredients other than pepper, it seems clear that there 
is misbranding. Defendants contend that the term "compound" does naturally so 
imply; the argument being that as the second subdivision of the fourth paragraph of 
section 8 of the act provides "that the term "blend" as used herein shall be construed 
to mean that a mixture of like substances * * * '" and regulation 27a made under 
the authority of the act, provides that "the terms 'mixtures' and 'compounds' are 
interchangeable and indicate the result of putting together two or more food sub- 
stances, and that the statute is satisfied in the case of a compound, if the word "com- 
pound" is plainly stated on the package. We are disposed to the view that the 
result of the statute and the regulations thereunder is that a blend is a compound, 
but a compound may or may not be a blend; in other words, that the term "com- 
pound" whether as an adjective or as a substantive, sufficiently indicates that the 
article is a compound within the statute. The provision is that articles containing 
no poisonous or deleterious ingredients shall not be deemed to be misbranded "in the 
case of articles labeled, branded, or tagged so as to plainly indicate that they are 
compounds * * * and the word 'compound' * * * is plainly stated on the 
package. 
2098
A primary label "White Pepper Compound" would doubtless fairly indicate that 
the article is a compound of white pepper and some other ingredient, whether another 
kind of pepper or an unlike substance, it is not now necessary to decide. But the term 
"Compound White Pepper" does not, in our opinion, necessarily import the same idea 
as "White Pepper Compound." The adjective "compound" we think, is sometimes 
used colloquially, as meaning  having added strength" as a "compound extract." 
However, this may be, it seems clear that the term "Compound White Pepper" does 
not so naturally imply to the average purchaser, 'a mixture of white pepper with an 
ingredient other than pepper as to make it a proper branding, as against the fact (as 
alleged) that the statement of the ingredients is so placed and in such type as not to be 
readily noticed by the purchaser, and as to be calculated and intended to deceive 
and mislead the latter. While we have found no controlling authority in specific 
support of this view, we have found nothing persuasive to the contrary. The decisions 
principally relied on by the defendants (In re Wilson (C. C.) 168 Fed., 566; United 
States v. 68 Cases of Syrup (D. C.) 172 Fed., 781; United States v. Boeckmann (C. C.) 
176 Fed., 382; United States v. 779 Cases of Molasses (C. C. A. 8) 174 Fed., 325, 98 C. C. 
A. 197) as well as the departmental rulings (one of the most prominent of which is 
F. I. D. 63) are all distinguishable from the case before us. In our opinion, the 
demurrer to the information was properly overruled.
The motion for new trial was addressed to the discretion of the court, and its denial 
is not subject to review.
It results from these views that the judgment of the District Court should be affirmed.
On March 6, 1912, the defendants paid the fine of $50 assessed in 
the lower court, together with the costs, aggregating $101.25.
W. M. HAYS,
Acting Secretary of Agriculture. 
WASHINGTON, D. C, December 12,1912.
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