187 Iowa 1312 | Iowa | 1919
The contention of the defendant is that the quantity of cascara included in the mixture is so great that it cannot possibly be used as a beverage. The decision of this case turns largely upon a question of fact: that is, whether the bottles seized contained cascara in quantities forbidding its use as a beverage. Wm. H. Harrison, assistant chemist for the dairy and food department of the state of Iowa, called as a witness by the plaintiff, testified that he was a graduate of Northwestern University, and was for four years an instructor in chemistry in that institution, and that, before coming to. Iowa, he was employed by the state food commission of Illinois. A bottle of Black Hawk Stomach Bitters, taken from one of the barrels in question, was delivered, sealed, to. Mr. Harrison, who made a chemical analysis thereof for the purpose of ascertaining its contents. He testified that he found it contained 23.6 per cent by volume of alcohol, 6 per cent total solids, .1 per cent of ash, and small amounts of rumex, tumeric, and cassia, 4.1 grains of ordinary cane sugar, and no, cascara. W. B. Zuker, professor of chemistry at Highland Park College of Pharmacy, testified that he made a careful analysis of a bot-
Opposed to this testimony was that of ft. A. Kuever, associate professor of the College of Pharmacy at the Iowa State University, who testified that he also made an analysis of the contents of two bottles which were taken from the barrels in question, of four bottles sent to him by the defendant Hartz & Bahnsen Company, and a quantity manufactured by him from the formula furnished by it; that he found the contents of the bottles taken from the barrels in question to be about 23 per cent alcohol. He also found a quantity of each of the several ingredients mentioned in the formula, and that there were 15 grains of cascara to each fluid ounce, or ordinary dose. A comparative test of the contents of the bottles received from the sheriff, the bottles received from the defendant, and the small quantity compounded by the witness, was made, and revealed all of the ingredients named in the formula in approximately identical quantities.
A. N. Brandenburt, in charge of the manufacture of the Bitters, testified that the mixture was compounded in strict conformity to the formula, and that all of it contained the same relative quantity of cascara. His testimony was, to some extent, corroborated by Mr. Bahnsen, who also testified that the compound had been approved by the commissioner of internal revenue, and was sold without the payment of a government tax. This witness, personally, does not take part in its manufacture.
Two physicians residing at Sheffield were examined on behalf of the defendant. Each expressed the opinion that, if the compound in fact contained 16.2 grains of cascara to each fluid ounce, it would not be suitable for use as a beverage; that cascara taken in that quantity would operate
The competency of each of the chemists who analyzed the Bitters is not seriously questioned. One separate hot tie was analyzed by each of the State’s witnesses, and two bottles by the defendants’ witness. It is, in effect, conceded that the mixture could be used as a beverage, if it were not for the cascara. The evidence does not disclose whether the four bottles, the contents of which were analyzed, were taken from the same barrel or not, nor does it show that the two bottles analyzed by Harrison and Zuker were taken from one barrel, and the bottles sent to the State University from the other; but the result of the analysis is utterly irreconcilable. It is to. be regretted that a further analysis by a wholly disinterested chemist was not obtained. The mixture, if compounded of the ingredients and in the proportion indicated by the formula offered in evidence, while having little medicinal value, would hardly be suitable' for use as a beverage. In fact, the evidence does not show more than an attempt to use it for that purpose. The defendants Bokmeyer Bros, and C. F. Bokmeyer, previous to the commencement of this suit, received large consignments of in
The decree of the court below enjoins the defendants from selling intoxicating liquors in the state of Iowa. The fact that the preparation contained a large percentage of alcohol is by no means conclusive that the sale thereof is
We think the evidence affirmatively shows that none of the mixture analyzed by the witnesses for the State contained cascara. We cannot, therefore, disturb the judgment of the court below. The particular bottles seized were not, however, sold by the defendant Foster. It is shown that the defendants Bokmeyer Bros, and C. F. Bokmeyer have purchased Black Hawk Stomach Bitters of him, but whether they contained the quantity of cascara necessary to destroy their properties as an intoxicant is not shown. We hardly think the evidence justified a decree against this defendant, and, as to him, it is reversed.
“And in case of a sale in which a shipment or delivery of such liquors is made by a common or other carrier, the sale thereof shall be deemed to be made in the county wherein the delivery thereof is made by such carrier to the consignee, his agent or employee.”
The delivery of the compound in question was made to