14:i5:>. Adulteration and misbranding: of salad oil and misbranding? of 
olive oil. II. S. v. Ellas Germack, Tried to a jnry. Verdict of 
sruilty. Fine, $450. (F. & D. No. 17696. I. S. Nos. 1536-v, 2088-v; 
2089-v, 2090-v.)
On November 13, 1923, the United States attorney for the Southern District 
of New York, acting upon a report by the Secretary of Agriculture, filed in 
the District Court of the United States for said district an information against 
Blias Germack, a member of a copartnership trading as the Armenian Im- 
porting Co., New York, N. Y., alleging shipment by said defendant, in viola- 
tion of the food and drugs act as amended, on or about September 26, 1922, 
from the State of New York into the State of Pennsylvania, of quantities of 
olive oil which was misbranded, and on or about October 14, 1922, from the 
State of New York into the State of Rhode Island, of a quantity of,salad oil 
which was adulterated and misbranded. The olive oil was labeled in part: 
(Can) "Pure Olive Oil Sopraffino Italia Brand * * * Net Conts.' % Gall." 
(or "Net Contents % Gall." or "Net Contents % Gall."). The salad oil was 
labeled in part: (Can) " Superior Quality Oil Greek Patriot Brand Winter 
Pressed Cotton Salad Oil Flavored With High Grade Olive Oil A Compound 
Net Contents 1 Gall."
Misbranding of the olive oil was alleged in the information for the reason 
that the statements " Net Conts. % Gall.," " Net Contents % Gall.," and " Net 
Contents % Gall.," borne on the various sized cans containing the article, were 
false and misleading, in that the said statements represented that each of said 
cans contained % gallon, % gallon or % gallon, as the case might be, of olive' oil, 
and for the further reason that it was labeled as aforesaid so as to deceive 
and mislead the purchaser into the belief that each of said cans contained 
Vs gallon, % gallon, or % gallon, as the case might be, of olive oil, whereas 
the said cans did not each contain the amount represented on the label but 
did contain a less amount.
Adulteration of the salad oil was alleged for the reason that a product 
which contained no flavor of olive oil had been substituted for a product 
flavored with olive oil, which the article purported' to be.
Misbranding of the salad oil was alleged for the reason that the state- 
ments, to wit, "Flavored With High Grade Olive Oil," and "Net Contents 
1 Gall.," borne on the label, were false and misleading, in that they represented 
that the article was a product flavored with high grade olive oil and that 
each of the cans contained 1 gallon net thereof, and for the further reason that 
it was labeled as aforesaid so as to deceive and mislead the purchaser into 
the belief that it was flavored with high grade olive oil and that each of the 
said cans contained 1 gallon net thereof, whereas the article was not a 
product flavored with high grade olive oil but was a product which contained 
no flavor of olive oil, and each of the cans did not contain 1 gallon of the 
article but did contain a less amount.
Misbranding was alleged with respect to both products for the further reason 
that they were foods in package form and the quantity of the contents was 
not plainly and conspicuously marked on the outside of the packages.
N. J. 14351-14440]  SERVICE AND REGULATORY ANNOUNCEMENTS 183
On November 20, 1925, the case came on for trial before the court and a 
jury. After hearing the evidence and arguments by counsel the court charged 
the jury as follows (Goddard, D. J.) : 
;,   .   v;,      :*;..
" Gentlemen of the jury, I think you understand that the Government passed 
this pure food and drugs act with several purposes in mind. One of them 
was to protect the citizens of the country from adulterated foods and short 
weight and so forth. Most of those adulterations are done to only a slight 
degree. By that I mean they do not take out a large percentage of the can 
or bottle or container; it is usually one or two or three per cent which is 
taken out. But the Government intends that every container should contain 
100 per cent, and the Government has made the law quite clear., These people 
here are charged with three breaches of that law: One, that the container did 
not state on the outside how much it contained; again, that it should have 
stated the exact amount, and also that it failed to contain the amount stated 
on the outside that it did contain. The third charge against these defendants 
is that there was no olive oil in this container at all, although it was adver- 
tised and sold to the public with the representation that it did contain olive 
oil.   You can realize how important it is for such a statute to be held inviolate.
" The Government says to you, ' We will not concern ourselves with the in- 
tention of the people.' It is not a defense to this case, gentlemen, to say that 
they did not intend that there should be a shortage of weight, or that they 
did not intend that the label should not fully indicate, or they did not intend 
to leave out the olive oil. If they in fact did give short weight, or did in fact 
fail to state on the outside; if in fact they did omit to put the olive oil in, 
and you find that they did, you should find them guilty. 
" In a criminal case like this, and this was tried in a short time, I shall not 
attempt, because I think no good purpose would be served, to restate the facts 
to you. They are all fresh in your mind. You have seen the witnesses called 
by the Government, various inspectors, and you have seen the Government 
chemists;'you have seen the witnesses that the other side called, that wei;e 
called by the defendants, two witnesses, both of whom, as I recall, were custo- 
mers of these defendants, or who did business with them. You will consider in 
your mind what interest any witness in this case may have had* Of course, 
if you find any witness has made a material statement of fact with the in- 
tention of misleading you, you have the right to disregard all of that witness's 
testimony if you see fit. 
? ;:?i:?*.   ?? ?    ? }
"As I remember, the shortages varied from 3.83 to 4.07 per cent in some of { 
the containers.   It seems that all of the containers are short weight. 
]
" You know, having been in this criminal court a few days, that everyone ] 
is presumed to be innocent under the law until shown to be guilty beyond a ] 
reasonable doubt. You also know from having been in the criminal court that \ 
a reasonable doubt means a reasonable doubt or a doubt which a reasonable ' 
man has after hearing all the facts and circumstances in the case.       -      ,'       i
"As I stated to you before, gentlemen, the question of intent does hot enter    ' 
into this case at all.   It is whether in fact the Government has proved beyond 
a reasonable doubt this charge against these defendants.
" Now there are nine counts here, gentlemen.   The first six counts relate to - 
the various sized cans; the last three counts relate to the alleged charge; the 
seventh count was to the effect that it is charged there is no olive oil at all 
in the containers.      " 
^-      - 
"Now, gentlemen, the case is simple. You are a jury of business men and 
experienced. You have seen these witnesses. You will retire, and by your 
verdict you will decide whether or not there was a shortage in the containers 
and whether or not they failed to put any olive oil in as required under the 
law."
ME. WHITTINGHAM : " If your Honor please, I would like to offer a slight 
correction in your Honor's statement as to the information. It does not 
charge there was no olive oil; it charges there was no flavor of olive oil."
THE COURT : " No flavor of olive oil."
MR. WHITTINGHAM : " If your Honor please, I ask your Honor to charge 
the jury that the test in determining the guilt of the defendants is whether 
the article was at the time of the sale by the defendants the identical thing 
that the brand indicated it to be." 
THE COURT : " Yes, gentlemen, that is very true, of course."
MR. WHITTINGHAM : " Also that the condition of the goods at the time of 
the seizure by the Government is not conclusive evidence as to their condi- 
tion at the time of the sale by the defendants."
BUREAU OF CHEMISTRY '    'WripiWSiit ii 
THE COURT: "Those circumstances, like everything else, gentlemen, you 
will take into consideration." 
MR. WHITTINGHAM : " Also, that unless the jury are convinced Tbeyohd a 
reasonable doubt that there was misbranding as alleged in the indictment, 
they must find the defendants not guilty." 
s ?; -. ' MJ :   . ;.i
THE COURT: "That is correct. If you have reasonable doubt about '|t you 
have not the conviction that is required to convict. I think that covers it, 
doesn't it?" 
MR. COUDERT: "Except it might be well to state that they can find the 
defendants guilty on any one or all of the counts?" 
THE COURT: "Gentlemen, you are to understand you will decide and in 
your verdict state whether you find the defendants guilty on any one or
_j.ll 
of these nine counts." 
;      v       :~':i'-' ??'"'* .
MR. WHITTINGHAM: "May I also ask that you instruct the jury they can 
have the exhibits with them?" ' 
^'V   '^ '
THE COURT: "The jury may have the exhibits." 
J-!;'
On November 24, 1925, the jury returned a verdict of guilty on all nine 
counts of the information, and the court imposed a fine of $450.;"';/---.
W. M. JARDINE, Secretary ofAgrictdture.