5527. Adulteration of tomato pulp. U. S. * * * v. 5,0i>0 Cans * * * of 
Tomato Pulp. Tx-Ied to *ae comet and a jury. Verdict far tlie 
Goverameat. Decree of eondemiiatioffi, forfeiture, and destruc- 
tion.     (F. & D. No. 6811.    I. S. Kos. 16511-k, 15484-k.    S. Wo. C-294.)
On August 10, 3J915, the United States attorney f@r the Northers District of 
Illinois, acting upon a report by the Secretary of Agriculture, -filed In the ?i*s- 
trict Court of the United States for said district a libel for the seizure and con- 
demnation of 5,060 cans, each -containing 1 gallon of tomato pulp, remaining 
unsoM in the original unbroken packages at Sycamore, Ill., alleging that the 
article had been shipped on December 4, 1914, by the Ladoga Canning Co., 
Brownsburg, Ind., and transported from the State of Indiana into the State of 
Illinois, and charging adulteration in violation of the Food and Drugs Act
Adulteration of the article was alleged ia the libel for the reason that it 
consisted in part of a decomposed vegetable substance; for the further reason, 
that it consisted in part of a filthy vegetable substance; and for the further 
reason that it consisted in part of a putrid vegetable substance.
On December 7, 19-15, the Sycamore Preserve Works, Sycamom, Ill., claimant, 
filed its answer denying the allegations of the libel. On January 16, 1917, the 
case came on for trial before the court and a jury, and at the outset of the trial 
the charge that the article consisted in part of a putrid vegetable substance was 
withdrawn by leave of the court. The trial thereupon proceeded, and after the 
submission of evidence and arguments by counsel, the following charge was 
delivered to the jury by the court (Landis, D. J.) :
Gentlemen of the jury, in this case there is one fact for you to find, and that 
fact is whether or not the product involved in this inquiry was composed, ia 
whole or in part, of decomposed or filthy vegetable .substance, That is the issue 
which is tendered to you in this case. The matter castes into the Federal eourt 
because the substance was transported in iatersiate commerce, and solely be- 
cause it was transported in interstate commerce, if it neiser had left the -con- 
fines of the State of Indiana, it would, be a matter for State determination., but 
being an interstate transaction, it falls within the jurisdiction of the act of Oom- 
gress known as the Pure Food Law, and therefore the obligation and the 
authority of the Federal Government attaches to it. And the authority t- 
seize having been exercised by its officers charged by tew with the enforcement 
of its provisions, has set in motion the machinery that lias cast iapon you now 
the obligation of determining the fact whether or .not the articles, -as stated 
before, in whole or in part, are decomposed or filthy vegetable substance.
This is a civil action, and feeing a civil action, the xuie -is that the case of the 
Umted States is to be established by the preponderance of the evidence, or the 
greater weight ?? the evidence, as distinguished from what the rale would be 
in a criminal -case where the doetriae ?f presumption 0f innocence, and the doe- 
trine of reasonable doubt -control.-
JNTow, by preponderance of -evideace is meant not which side .has the great 
number of witnesses, but it is that side of this controversy mx which is the -be- 
lievable statement of facts, as distinguished from the other side. One hundred 
witnesses testifying to a thing that is obviously untrue, or to .a thing that is 
obviously an error, ?oes not give to that side the preponderaaee <of evidence 
against one witness testifying in favor of a thing that is obviously true. So, it 
is not to be determined solely by the number of witnesses.
Now, in determining here where is the preponderance, whether the .pre- 
ponderance is in fayor of the acensoticBi against the product, namely, Hiat it m 
composed m whole or in part of filtlhy or dec?Eaposed vegetable substance 
bring to bear -up?a this controversy -that comman jsense and judgtscat that w?ald 
characterize yoisr consideration ef a eMtitrarorsy away from eoart, at home, or 
in your business, dealing with a matter of conoerja t? yon personally.
The seizure asn this case was aaade at Sycamore, III. The ^product seized is 
colled tomato pulp. It was found in upward of 5,?0? sealed casts. The charge 
of the <3overfflmeat, as I stated bef ore, is that the jmlp aontaijas decomposed ?r 
filthy vegetable matter. The fact, fher-efore, for .the witnesses is whether ?r not 
at the time the product entered interstate commerce-that is to saj, whea it was
put aboard cars at Brownsberg-it was in part filthy or decomposed in its con- 
tents.
Now, to determine the question, to elucidate to you the question respecting 
that matter, the United States presented a number of witnesses who testified 
as to examinations made by them of the product after its arrival at Sycamore- 
microscopists, biologists, and other expert witnesses--and they testified to you 
what they found, and they gave you, on the basis of that testimony, including 
in that testimony other evidence given by other witnesses of conditions, their 
judgment as to whether this commodity contained in part decomposed or filthy 
matter. There was evidence as to tests made by one or more of the Govern- 
ment's witnesses, in the tomato pulp manufacturing industry at canneries cover- 
ing a substantial period of years, one witness dealing with tests made in the 
United States and in Italy, in connection with the preparation and manufacture 
of this article.
Now, the defendant, the manufacturer, or superintendent, secretary and 
treasurer of the manufacturing concern testified as to conditions at the plant, 
the treatment of tomatoes up to the time they went into the boiling vat, includ- 
ing inspection, cleansing and so forth. For the defendant, the witness Wesner 
testified. He gave you no evidence of tests such as you have in mind when 
you think of expert tests, that is to say, he did not use a microscope. He 
made no technical bacteriological test; he made no chemical test; there was no 
such evidence introduced by the defendant, that is to say, no expert evidence, 
the evidence being evidence based upon the test made by the witness who 
subjected the articles to an examination by the three senses, taste, smell, and 
sight.
There was introduced by the United States in rebuttal, after the close of 
the defendant's case, four bottles of an article testified to be pulp, and the 
witness testified that he manufactured it, and gave you the condition under 
which it was done. Those four bottles were submitted to the witness Wesner 
while he was on the stand, and he subjected them to the same test that he 
had previously testified he had subjected most of the articles in question here 
to, and which tests he made in your presence, and you recall his evidence as 
to the content of those four bottles, or jars. Now, I make no comment upon 
it, as to what that means in view of the evidence as to the content of the four 
bottles, what went into it, how it was made, what it was made of, but, I call 
it to your attention as being worth your while to recall and determine it, the 
weight of the evidence of the witness Wesner as to the sufficiency of the eye 
test and smell test of an article of this kind in an effort to determine its content 
with a view to answering the question, does it contain decomposed or filthy 
matter in whole or in part.   Now, so much for that.
There were many witnesses called by the prosecution. In determining the 
weight you will give to their evidence, you have in mind many other things- 
I will include all the witnesses in this for the prosecution and the defense, 
experts and everybody else having in mind first, the kind of witness he is, the 
kind of man, how the witness appears to you here, whether the witness seems 
to be engaged in an effort to deceive or mislead you to a false judgment in this 
case; and in determining that fact, ask yourselves the question about the 
various witnesses, what interest has this witness in deceiving and misleading 
the jury; what is to be gained by deceiving you. Then have in mind the 
intelligence of the witness as disclosed by his demeanor in the court room 
and on the stand, whether he knows what he is talking about, apparently. 
You are not obliged to accept the statement of a man that is inherently im- 
proper, that is repulsive to your intelligence, merely because he swears to it. 
Ultimately it is for you to put it in the scales and weigh it and to appraise it, 
\*hat it is worth. What I have said in that respect applies to witnesses on both 
sides. If you find that any witness has started out here, or, being a witness, 
has entered upon the enterprise of telling you something that is not true, of 
getting into your mind a judgment about this controversy that is false or er- 
roneous, you excuse that gentleman from this case entirely, respecting every- 
thing that he said, except insofar as any of the testimony he has given is 
corroborated by other witnesses, whose testimony you believe, or by facts and 
circumstances proved on this trial. In other words, in determining what the 
fact is here, decomposed or not, filthy or not, approach the controversy as I said 
a while ago, just as you would a controversy of concern to you at home or in 
your business.
Now, it is not a question solely whether this stuff-I do not use that word 
" stuff " in any significant way-this article, is fit or unfit for food. I will tell 
you why I say that. The evidence is this article is sterile; that means the con- 
tents has its injury producing qualities killed by heat; so that even though 
this article was 5 per cent bad, that is, 5 per cent bad tomatoes, and 9ET per 
cent good tomatoes, or 10 per cent bad tomatoes and 90 per cent good tomatoes 
at the time the tomatoes went into the boiling vat down there in Brownsberg, 
the evidence in this case is, if you eat this tomato pulp, the 5 or 10 per 
cent rotten tomatoes have undergone such treatment that their power to 
injure you has been killed by the heat. I will say no more upon that. You 
gentlemen all understand that principle.
So I say, the question is not whether it is fit for food. The question is, 
whether or not, in manufacturing, the 10 per cent bad tomatoes did go in, or 
the 5 per cent bad tomatoes did go in. That is the question. And if you find 
it did, your verdict will have to be against the tomato pulp, even though you 
believe-even though you know that you could eat the whole cargo of the 
product without suffering any evil consequences.
I do not know whether I ought to say anything about the high cost of living 
which my brother Batcheldcr talked about. I hesitate to speak upon the sub- 
ject that a lawyer brings in in his argument, with the broad latitude given a law- 
yer. I expect probably nobody ever enjoyed that latitude any wider, or further 
than I did when I was practicing law, but it is your business, and mine not to 
be enticed away from our duty, when we have submitted to us a question to 
decide, by getting into closing argument, that suggests to us considerations 
that may have a tendency away from court to induce us to take a liberal or 
broad view of subjects. There may be men on the jury that raise tomatoes; 
certainly there are men on the jury that eat tomatoes. Don't consider this 
controversy from the standpoint of either the man that raises tomatoes, or the 
man that eats them. Denude yourself of that, and decide this question as though 
you never would or had raised tomatoes, or never would or had eaten tomatoes. 
You can do that thing. The high cost of living has got nothing to do with this 
thing. At all events, counsel did not mean to solve the problem of the high cost 
of living, by having us eat bad tomatoes.   He did not mean that.
Of course, if there is an order of destruction here, somebody has got to lose. 
That has not anything to do with your judgment. In a criminal case, if there 
is a verdict of guilty, somebody is punished, but in determining the question 
of fact whether or not the man is guilty, in determining the question of fact 
whether in this commodity there is filthy or decomposed vegetable substance, 
it won't afford you the slightest aid in finding the fact in this case to have 
in mind that if you reach a certain verdict somebody will lose. What hap- 
pens to this tomato pulp in the event of a verdict of guilty-a verdict of con- 
demnation, a verdict that it is composed in whole or in part of decomposed 
or filthy matter, is of no concern to you. It is to me. Wisely or unwisely, the 
law has cast upon the judge the authority and responsibility in the event of a 
verdict against the pulp by you, of disposing of the matter. And in deciding 
the question which the law has submitted to you, of course you will not 
be influenced even to the slightest extent by any thought or speculation as to 
what I may do with it, in the event you reach a verdict a certain way.
Any exceptions, Mr. Batchelder?   Any suggestions, Mr. Prosecutor 
Mr. DICKINSON. I have none, your honor.
The COURT. I neglected to give the technical legal names of the litigants. 
In this case, in this kind of a proceeding, the paper that is filed by 
the United States, which contains the formal accusation against the pulp is 
called a libel; in a criminal case an indictment; in a civil action for 'damages, 
a declaration; in this case it is called a libel. The Government in this case is 
called the libelant, the person that brings the action, the libelant. The claim- 
ant in this case, represented by Mr. Batchelder, and his associate, is called the 
claimant. That is the person that represents the article against which the libel- 
ant proceeds for condemnation.
So, if you find against the tomato pulp, that is, that it is composed in whole 
or in part of decomposed or filthy vegetable substance, the form of your ver- 
dict will be, " We, the jury, find the issues for the libelant." If you find for 
the tomato pulp, that is, that it is not composed in whole or in part of filthy or 
decomposed vegetable substance, the form of your verdict will be, ?' We, the 
jury, find the issues for the claimant."   That means for the pulp.
You may retire, gentlemen.
TJie Jury thereupon -retired and .after due -deliteerattoa refaorned *a vei-dict 
favorable to -the fioveramejiit -an Jasruary 20, 1M7, and ?n January 22, 1*917. 
tiie elainmat --eompany filed its -motion for a -new trial, which said motion, on 
February "9, 1917, -was overruled, and a lorjoaal decree of eondemnation asnl 
forfeiture was entered, and it was ordered by the e?ur4; -that -tiae^p-radnet *bmki 
be destroyed by the United States .marshal 'and 'that sa-M -cliairaant -company 
should pay the costs ?? fche ppoceedifig.
GAEL V?)OAtAH, Jketmg &?re?ary p/ AgricmlPure.