249 F. 505 | D. Colo. | 1917
(orally). There is no doubt about the facts in this case, but I think there is question as to whether or not the facts bring the shipment within the terms of the act of Congress. We declined to meet this question heretofore in connection with a shipment of apples; that is, we refused to issue the writ of seizure. The charge was that some of the apples were rotten, but on preliminary inquiry it appeared that many of them were sound — were in good condition for use, and could be readily seen and separated from the unsound. It is pretty difficult to free our minds from .the idea of deception in the sale of this kind of fruit in the condition that the evidence shows these oranges are, and yet that element ought to be eliminated, because the act of Congress in no sense undertakes to reach the purpose of the act by bringing within its terms any fraudulent conduct in the sale of the article. You cannot determine the condition of an orange from looking at it as you can an apple. Now the evidence, I take it, does bring the shipment within the literal terms of the act; the oranges were decomposed in the sense that on account of prior freezing they were undergoing a deteriorating change; that is, a large per cent, of them. I presume there is a process of decomposition going on when an apple is passed through the stages of what is popularly called mellowing; it is hard when picked and is kept for sev-r eral months pr weeks before' it becomes highly palatable. You would not count that — if that be decomposition — as being within the meaning of the act of Congress, for that is a process purely of nature itself, normal to that fruit.
It is true that freezing does not destroy the wholesomeness, immediately, of fruit — either fruit of this" character or other fruits — but it starts the process, which, in a short time, will destroy it for all food purposes; and I conclude from this evidence that would be true in this case of a great per cent, of these oranges. On account of having been frosted they would from that cause alone within a reasonable time become wholly unfit for food purposes; within a time less than required to render them unfit for food if they had not been frosted. There is evidence that they were not hurtful if eaten — nothing poisonous about them — nothing harmful in any degree; but there is aíslo evidence' that frosting may cause them to have a bitter taste. However, we must conclude that freezing, as already said, through the necessary processes of nature that immediately follow, would lead to the total destruction of this shipment as a food product. Now-, if that be true, is it not decomposition within the meaning of the stat
I believe that is decomposition constituting adulteration within the statute. I think you expressed the true issue in the case, Mr. Lee, when you said the sole question is whether or not the facts, which are undisputed, bring them within the intent and purpose of the statute. My judgment is that in the sense of the-statute they were adulterated when they were seized at Denver on the 18th of 'December.
You may take a decree of condemnation without costs.
