Margolin v. State, 23664.

• Citation: 205 S.W.2d 775
• Decision Date: 29 October 1947
• Docket Number: No. 23664.,23664.
• Parties: MARGOLIN v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

205 S.W.2d 775

MARGOLIN v. STATE.

No. 23664.

Court of Criminal Appeals of Texas.

October 29, 1947.

Rehearing Denied November 26, 1947.

Commissioners' Decision.

Appeal from County Court at Law, No. 2, Harris County; Allie L. Peyton, Judge.

A. A. Morgolin was convicted of violating the pure food law by manufacturing and offering for sale a bottle of adulterated soda water, and he appeals.

Reversed and remanded.

Jack K. Ayer and James V. Allred, both of Houston, for appellant.

Price Daniel, Atty. Gen., Burnell Waldrep, Asst. Atty. Gen., A. C. Winborn, Crim. Dist. Atty., and E. T. Branch, Asst. Crim. Dist. Atty., both of Houston, and Ernest S. Goens, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

This is a conviction for violating the Pure Food Law; the punishment, a fine of $200.

The accusation, as laid in the Information, was to the effect that on September 4, 1946, appellant manufactured for sale and offered for sale an article of food, viz., a bottle of soda water which was "then and there adulterated in this, to-wit:

"A substance, to-wit: saccharin, was then and there mixed with said article of food so as to lower and injuriously affect the quality and strength of said article of food, and a valuable constituent of said article, to-wit: sugar, was then and there wholly and in part abstracted therefrom, and said article was below the standard of quality and purity represented to the consumer thereof * * *."

By Article 706, P.C., it is made unlawful for one to manufacture for sale, offer for sale, or sell any article of food which is adulterated. Bottled soda water is there defined as an article of food.

By Article 707(c), P.C., an article of food is adulterated:

"(1) if any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength;

"(2) if any substance has been substituted wholly or in part for the article;

"(3) if any valuable constituent of the article has been wholly or in part abstracted, or if the product be below that standard of quality, quantity, strength or purity represented to the purchaser or consumer.

"(4) if it be mixed, colored or powdered, coated or stained in a manner whereby damage or inferiority is concealed;

"(5) if it contains any added poisonous or other added deleterious ingredient which may render such article injurious to health, provided, that when in the preparation of food products for shipment they are preserved by any external application applied in such manner that the preservative is necessarily removed mechanically, or by maceration in water or otherwise, and directions for the removal of said preservative shall be printed on the covering of the package, the provisions of this Act shall be construed as applying only when said products are ready for consumption;

"(6) if it consists in whole or in part of a filthy, decomposed or putrid animal or vegetable substance, or any portion of an animal or vegetable unfit for food, whether manufactured or not, or if it is the product of a diseased animal, or one that has died otherwise than by slaughter."

The Information charged a violation of Sections (1), (2), and (3) of that Article.

The Legislature has not prohibited, by name, the use of saccharin in the manufacture of bottled soda water. If it be unlawful, then, to use saccharin in such, it is so by reason of the fact that such constitutes an adulterated food, as that term is defined by law.

The facts show that appellant is a manufacturer —that is, a bottler—of soda water and, as such, did manufacture for sale and offer for sale a bottle of cream soda water which contained saccharin. The facts further show that saccharin is a drug; it is not a food, and has no food value. It may be taken in sufficient quantities to be injurious to health, especially that of a child. The amount of saccharin in the bottle of soda water upon which this prosecution is based was slight and not of sufficient amount, of and within itself, to be injurious to health.

The purpose for which the saccharin was here used was as a sweetening agent to displace, and it did displace, three per cent. of the sugar content. Sugar is the principal food ingredient of soda water.

In addition to the foregoing facts, the State introduced in evidence the following order of the State Board of Health promulgated by the State Health Officer:

"`Beverages

"`A. Carbonated Beverages, Soda, Soda Water

"`The term "carbonated beverage," "soda," or "soda water," used in this definition shall include all beverages prepared from sugar sirup or sugar and dextrose sirup, soda water flavor, and potable carbonated water, with or without harmless color, and with or without acidulation by the use of harmless organic acide, or pure phosphoric acid.'"

"`Saccharin In Carbonated Beverages, Soda, Soda Water, Soft Drinks, And Food.

"`The use of saccharin as an ingredient in carbonated beverages, soda, soda water, soft drinks, or other food is hereby prohibited. Any carbonated beverage, soda, soda water, soft drink, or other food containing saccharin will be considered as adulterated under the Texas Food and Drug Law.'"

"Since saccharin comes within the definition of a drug and has no food value, and, further, in view of the possible harmfulness of saccharin in food products, the State Health Officer has no alternative but to inform you that any carbonated beverage, soda, soda water, soft drink, or other food containing saccharin as an ingredient will be considered as adulterated under the Texas Food and Drug Law. It will be our purpose to investigate any carbonated beverage, soda, soda water, soft drink, or other food containing saccharin as an ingredient and refer the facts so obtained to the courts for appropriate legal action.

                                      "Yours very truly
                                      "Geo W Cox
                "GWC:SC                Geo W. Cox, M. D
                "590                   State Health Officer"
                

Appellant admitted that he was in possession of a copy of said order and had full knowledge thereof at the time he bottled and offered for sale the soda water containing saccharin. The question of prior notice of the order is therefore not presented.

The court before whom the case was tried, without the intervention of a jury, certifies that he construed the order mentioned as setting up a "standard for cream soda water under which the use of saccharin therein made such article of food adulterated and supplemented the provisions of Art. 707 of the Penal Code by prescribing such standards for soda water * * *."

The trial court further certifies that he predicated his finding of guilt upon the order mentioned and that, without such order, he would have held the evidence insufficient to support appellant's conviction. Why the trial court made such a finding in view of the testimony showing that the use of saccharin in the soda water displaced a valuable food content therein is not for us to question. The certificate precludes our consideration of the facts as authorizing appellants' conviction, independent and outside of the order mentioned.

Appellant did not object to the receipt in evidence of the order of the State Health Officer. He did object to the consideration by the court of said order because (a) Art. 707, P.C. having defined "adulterated foods," the State Health Officer was powerless to add to such definition; (b) that order...