# Transcript of Record — United States v. Lexington Mill & Elevator Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0194%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1914 - **Citation:** 232 U.S. 399 ## Text SUPREME COURT OF THE UNITED STATES. Oocroser TsRM, 1913. No. 548. THE UNITED STATES OF AMERICA, PETITIONER, vs. LEXINGTON MILL AND ELEVATOR COMPANY. ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. INDEX Original. Print. Paints sccwecsuaees bse sosccnscuctepnbesedbuaviecccdoccsccceacase a a Stipulation to omit parts of record in printing. .. 1 1 Transcript from the District Court of the United ‘States ‘for the Western Peers 0 MRO. ooo sccc cnc de es cei ccdeccwcewccctesccccsccccccce 2 2 Citation on writ of error and acceptance of service.................. 2 2 Writ of error and clerk’s return....................22.02222-00000- 3 3 Citation on appeal and acknowledgment of service [xb dpewebaachign x6 + 4 hee ee a ee 5 5 Reeord entry of filing of libel, etc.................22..2222222000- 6 6 Ds Hikchaebeideehnahirs ocles het bleaching flour? A. I have. Q. Many, or few? A. Well, quite a good many. Q. Quite a good many? And have you yourself, observed the nitrogen peroxide gas, after dilution by the atmosphere, into the condition that it was used for bleaching by the Alsop process? A. I have. Q. With what respect to that, [ would like to have your de- scription? A. It appears—if the generating box has glass sides, which it sometimes does, sometimes one can readily detect by the eye a slight color in there, and sometimes it is almost impossible to see the peroxide as it is formed. But there is always a little leakage around the agitator, and the odor is quite marked. Q. The odor of it is observable? A. Is observable, ves, sir. Q. Now, it is not the same, then, as pure air, as was de- scribed by Mr. Smith in his opening, yesterday? LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 45 Mr. Smith: I object to this as leading and suggestive. By Mr. Butler: Q. Well, is it the same as the pure air described by Mr. Smith in his opening, yesterday? Mr. Smith: I object to that as incompetent, irrelevant and immaterial, leading and suggestive. The Court: Sustained. By Mr. Butler: Q. Is it pure air? A. It is not pure air. Q. Now, have you observed the pipes employed to conduct the gaseous medium from the Alsop generator to the flour, to be bleached by it, in the agitator? Mr. Smith: Pardon me, I want to object to this, Your Honor, as incompetent, irrelevant and immaterial, the witness 149 =not having shown himself at all familiar with the mill in which this flour was bleached. Now, that: simply raises the question, if the Court please, as to whether or not we are to deal specifically or generally, in this case, and, what- ever the ruling of the court, why, I am willing to take our chances on that; but I want to call Your Honor's attention, now, SO We may know where our bearings are to be. The Court: Well, without committing myself for or against that proposition, I assume that these Alsop processes, made by this concern at St. Louis, are all made of one and the same patterns. Mr. Smith: Well, I don’t know on what theory Your Honor assumes that. There is no evidence of it, nothing to show how they are installed in the mill, as to how far this air is carried after the electrodes have generated this, or what would be the effect of carrying it a small distance or a long distance, I don’t think we have a right to assume any of these things. The Court: IT am not, except on the basis of the evidence of this gentleman from St. Louis, who told in a general way, that pure air was brought into this cylinder, or compartment, where these electrodes are, one stationary, and the other mov- ing vertically by crank motion, and, from there carried through a pipe to a box called an agitator. This is what the gentleman from St. Louis said, as T understand it. If I am wrong in that, —if I am confusing that with— Mr. Butler: (Interrupting): It was this witness, who de scribed the process, I think. = 46 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. Mr. Smith: The gentleman from St. Louis didn’t testify to it, at all. The Court: Oh. 150 Mr. Butler: No, but they come in and say that this proc- ess treated this flour, and we have the right—well, Your Honor has ruled. The Court: Of course, as I said to you gentlemen, in Daven- port, I don’t want to be confusing this with what— I went and saw one of these things. “Mr. Smith: Yes. The Court: But I am not testifying. I went and saw myself, how it is done, I think I am confusing that with this. Mr. Smith: I think you are confusing your general know!- edge with what has been testified here, Your Honor. Mr. Butler: No, the witness has said that sometimes there is a glass you can see in. The Court: Now, I saw that. Now, the agitator, I didn’t see in it, and I don’t know as anybody says you can. Mr. Smith: My objection goes to the point that this wit- ness hasn’t shown that he ever saw or knows anything, person- ally, about this mill from which this flour came. Now, the question presented, Your Honor, is, whether or not this wit- ness will be permitted to testify about conclusions which he derived from the inspection of some other mill, or, is it to be limited to a knowledge derived from the inspection of this mill? The Court: It will be limited to the Alsop process, but to that extent general. The Alsop or Andrews process. We will call it Alsop, for short. Mr. Smith: Yes. The Court: Go ahead. The Witness: Judge, I believe I am confused on the ques- tion, now. The Court: The objection is overruled, and the defendant excepts. Mr. Helm: If Your Honor please, I notice Mr. Smith has not been saving his exceptions, at all times. May it be 151 understood that the exceptions are saved, at all times? LEXINGTON MILL AND ELEVATOR OO. VS. U. 8. OF A. 47 The Court: No, but, as a matter of courtesy to counsel, { have saved them for him. Mr. Helm: So that, you desire to have them stated? The Court: I want the exceptions, on the pivotal points saved, of course, but I can’t give you general authority to fill in objections, in the record, without any limitation. Mr. Smith: No. I: you don’t make the exception, and [ want it, I will put it in the record, The Court: Yes, because I assume they are matters of im- portance, and I want the exceptions saved. Mr. Smith: Yes, and if you don’t save them, and I think they ought to be saved, I will state them. The Court: Very well. A. (continuing) Yes, I have observed the pipes. By Mr. Butler: Q. And what did you observe about that? A. Well, it depends largely on how long the pipes. have been in the mill, and of the material of which they are con- structed. These pipes wear out, after a time: They become rotten, so you can take them right in your fingers, and erumble them all up, and they have to be replaced by new pipes, un- less they are made of some material that is not attacked by the gas. If made of the common iron, or galvanized iron, their life is not so very long. By the Court: Q. How long? A. Well, from a year to— Mr. Smith: (Interrupting) What did he say? A. (Continuing) Sometimes vary. Of course, it depends on the thickness of the iron. It is simply a quantitative ques- tion. It is eating all the time, and the bigger the iron, the longer it will last; that is all. Q. Now, tell us how this air, modified by electricity, 152 = and containing nitrogen peroxide gas, destroys iron pipes. A. How it destroys iron pipes? Yes, just make that as plain as you can. Helm: Does he say that it will destroy them? . Butler: Yes. sir, it does. . The peroxide of nitrogen, when it comes in contact with water, immediately splits up, and it forms two acids, one of them nitrous acid, and the other is nitric acid, one of the most 48 LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A. powerful acids known to chemistry, one of the most corrosive, one of the greatest solvent reagents that we use in chemistry, is nitric acid, and of course this nitric acid will act. in time, anywhere, and every time that it has an opportunity to act. Comes in contact with these pipes, and it acts. That is all there is to it. Q. And, in the ordinary use of the Alsop process, is it the gas passing through, or the medium—the air and the gas mixed, together, passing through the iron pipe, which goes into the agitator for the purpose of bleaching the flour? A. It is. Q. And it is at the same degree of dilution in the pipe as - in the agitator? A. Same degree. Well, let me see. Now, wait a minute. I want to be right about this. Q. Or, does the opening of it into the agitator further di- lute it? A. It further dilutes it, Mr. Butler. Q. Further dilutes it? Now, generally speaking, about how large are these agitators, or boxes, or, do they vary? I want to know, is it as large as a barrel, or a hogshead? A. Oh, it is larger than that. They are usually made— well, those that I have seen, for instance, take the upright agitators, they are like this-(indicating). By the Court: Q. Well, now, say how many feet. A. Oh, four or five feet in diameter, or four feet, we will say, in diameter, or three feet, along there. It depends alto- gether on the size of the mill, and bow large a stream is treated. 153. By the Court: Q. Well, you have given the diameter. How long? A. Well, they would be from six to eight feet high—as high as a man could reach. By Mr. Butler: Q. Now, with respect to nitrogen peroxide gas, may it be produced other ways than by the flaming are which you have described as a part of the Alsop Process? A. Almost innumerable other ways, yes, sir. Q. And, for example, can you— A. (Interrupting) For example— Mr. Smith: (Interrupting) I object to that, Your Honor, as immaterial. It is shown how it is produced in this instance. We are not investigating methods which are not in controversy here, are we? Mr. Butler: Well, no, that isn’t the purpose, Your Honor may see. But this witness has given a good deal of time and LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A. 49 study and research to the effect of the application of oxygen upon flours and other things. The Court: You may answer. Mr. Smith: We save an exception. The Court: Claimant excepts. A. (Continuing) One specific instance, anyway. For in- stance, like this was a piece of iron, and immerse it in nitric acid, and warm it, and peroxide fumes will come off, or bet- ter, take copper, and nitric acid, just about take the common copper and nitric acid,—it is an experiment that any one can make,—and you will see the same dark, brownish red fumes, with suffocating odors, come off. They are peroxide fumes, and there are so many different ways, I don’t suppose, per- haps, a jury would be interested in how we get the absolutely pure. It is complicated, and— Q. (Interrupting) Well, what I want to call out, is this: are the characteristics of nitrogen peroxide gas exactly 154 the same, however produced,—whether by the Alsop process, the flaming arc, or by chemical methods, or other methods? A. Nitrogen peroxide is always nitrogen peroxide, wherever you find it, and under whatever circumstances made or pro- duced, the same as water is water. It is a definite chemical compound. : Q. Yes, that is what I was trying to make clear. Q. In your work have you become familiar with the process of the manufacture of flour from wheat? A. TI have. Q. And with respect to the fitness of new wheat, as com- pared with old wheat, for milling purposes? A. I have. - Q. Characteristics of the flour made from both? A. I have. The Court: Speak up, please. A. (Continuing) I have, yes sir. By Mr. Butler: Q. And the effect upon wheat flour, by the lapse of time, storage,—called aging? A. I have. Q. I would like to have you describe to the jury the mill- ing process, having regard to the use of wheat, new and old? A. Any kind of wheat? Q. Yes, both ways, so as to make comparison between the two, if that is convenient, or, just describe the process, if you like. Describe the milling process, first, and then perhaps. by more appropriate question, I can call for what I am trying to get at. 4—3533-3534 50 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. A. Well, in the milling process, the first step, of course, is to clean the wheat, and clean it very clean; and that is done, even, if necessary, with scrubbing. The next point, in the modern roller mill, is to temper the wheat. That is what the miller calls “tempering” it. He allows it to go through a suit- able box, and blows in a certain quantity of steam. Now, that is a very important part in the process. The reason is that that toughens the outside. It makes it tough, so that, when he goes to put it through his rolls, it won’t break all up 155 _—siin fine particles, and go through his sieve with his flour. Well, as soon as the wheat is tempered, it is run, then, into a set of rolls. The rolls may be divided, roughly, in two classes. Some of these rolls have little corrugations on them, and those rolls, one of them turns this way (indicating), and the other runs in the opposite way, so they are both going in the same direction, but one goes faster than the other; and the second class of roll is a roll that is polished per- fectly smooth, and they run, by means of belts, just in the same way. Well, when the wheat is caught between them, you can see, then, that it is caught,—it is pulled,—it is crushed. Well, now, the first step, without going into all the numerous details,—there wouldn’t be time, today, to tell them all,—the first step is, then, they go into these rough, corrugated rolls, and they touch very lightly, indeed. The bran is, almost all of it, loosened at this point, or a large part of it, at least, and it takes away some of the flour, and the shorts, also; and the grain, itself, is cracked into coarse kernels, like sand. You could take it in your fingers, you know, and rub it. These coarse pits, now, that are made in this first roll, are called “middlings”. That is the technical term. They are known as “middlings”, and it is by grinding these middlings that the best flour,—that is, the highest priced flour,—is made. It is from the grinding of those. Well, these middlings are purified. They put them through a_ purifier, and that cleans them all off. It takes off the bran,—blows the bran all away, and leaves them. Sometimes this is put on the market and sold, under various names, as breakfast foods—just that better part of the wheat. Well, now, at the time that these middlings are made depending on the wheat that you are grinding,—if it is a real starchy wheat, the very first time through the break-rolls, it shakes out a little white flour, that the miller calls the “break” flour. This break flour is usually run into the patent flour, or, just as the 156 miller may choose. Well, now, when these middlings have been cleaned all up, and made as pure as possible, it is carried on over to these smooth rolls, and these smooth rolis begin to crush them, and makes them fine; and from there the stream is put through a bolting cloth, and things LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 51 like that, and some of the branny portions, or the inside coats, are removed, and we get a stream, then, of patent flour. And that is called patent flour, made from the best, or middlings. Well, as I said, in the first break-rolls, the bran has some flour adhering. They don’t throw that away, these days. The mill- ers are grinding very close. As an illustration, I heard one man say— Mr. Smith: (Interrupting) I object to that. I object to the witness testifying to what some one else told him. He was starting in to relate what he heard some one say. I object to that, as hearsay testimony. The Witness: I will take it back, and say it, myself. Mr. Smith: TI didn’t intend to scare the reporter, but it seems I did. Mr. Butler: Yell before you get up. Mr. Smith: No, I'll get up and then yell; Pll warn you. The Witness: Well, it was immaterial, anyway. Mr. Smith: Yes, sir,—thet was just what I was going to object. for. A. (Continuing) Well, it is immaterial. That is taken again, understand. The flour is used again. You can take it from me that there is no: flour left. Well, that flour is saved, and some of the latter flour, on the reduction of those middlings, is also saved, and it goes into a flour that they eall “clear” flour. Now, we have got the highest—the patent flour, came from the middlings, and the remaining flour is called “clear” flour, but there’s some of it almost shorts. * They are near shorts. It is almost cattle feed. There’s 157 _—stthree or four per cent of that, sometimes,—depends on the wheat, and that isn’t put on the market, as a rule. It isn’t sold. The miller has got a contemptible name for it, because he despises it. He calls it “red dog” flour, and that red-dog flour,—but sometimes it flours very high, and if it’s very low they save up this red-dog flour until they get a very large quantity of it, and then they regrind it, and get baker’s flour, or something like that. I don’t know.—it depends on the miller. There isn’t any uniformity. The Court: For us lawyers to eat at hotels? The Witness: Yes. The Court: TI see. 52 LEXINGTON MILL AND ELEVATOR Co. VS. U. 8S. OF A. Mr. Smith: I don’t know whether that is the case where they are in the hotel,—the jurors—but I don’t think it is, at the one we are stopping, Your Honor. The Court: I don’t know. I cannot say about that. A. (continuing) Now, those are not the only kind of flour that are known, or that the miller makes. Now, very often he begins in this way: He unites the stream—the patent flour and the clear flour; he runs the two together. That takes all the flour there is in the wheat, and he has got a good name for it. He calls it “straight” flour. It is straight flour. The Court: We will take— A. (Continuing) And it includes all the flour in the wheat. The Court: I always have a mid-session recess, gentlemen, but a very short one—five minutes. Please be back in five minutes. (Recess then taken for five minutes.) The Court: Call the jury at the door, Mr. Bailiff. James H. Shepard, resuming the stand, was examined fur- ther, and testified as follows: 158 By Mr. Butler: Q. I think, at the time we paused, you had concluded, Professor, a description of the general features of the milling process. A. I had. Q. In your laboratory work, do you mill flour? A. Oh, yes. I have milled very many samples. By the Court: Q. You what? A. T have milled very many samples. IT have an experi- ment mill, and I carried on an investigation, on all of. the new things that the government introduced to this country. I milled them out, and made flour from them. I made these middlings, and employed those for making macaroni. That is, these new Durum wheats, and in comparison with our spring wheats, and the Kansas red wheats, and work of that kind. I have done a very large amount of that kind of work. Q. Now with respect to the conditioning of wheat for mill- ing I would like to have you— Mr. Butler (interrupting): Oh, I didn’t observe you were absent, Judge Scarritt. We had just spoken of his experi- mental mill, with which you are familiar. LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 53 Q (Continuing) With respect to the shipment of new wheat, as compared with old wheat, for milling, other things being the same? A. I would like to get your question. Q. Well, what I am trying to get at, is this. Is new wheat, taken right from the harvest field and threshed out from the shock, as fit for milling, or as well adapted for milling, as would the same wheat become, if stacked before threshing, and if stored, after threshing, for a time? A. No, it would not. Q. Well, now, explain that to the jury, about the condi- tioning—that is what I am trying to get at. A. Well, when a wheat is first harvested, the best prac- tice is, to cut it,—especially, that is, we cut it, as we say, a little bit on the green side.. We allow it to dry in the shock. Mr. Butler: Can you hear him, Judge Scarritt? . Searritt: I heard him say “with us”. . Lyons: That is, South Dakota. . Butler: He says he cuts it a little on the green side. Just a little before ripe, I think? Mr. Searritt: In South Dakota? Mr. Butler: The best read men, I am asking about. A. (Continuing) Then, after the wheat is dried in the shock we put it in the stacks. Well, as soon as it gets in the stacks, it begins, in a very few days, to sweat. It becomes warm. The straw is tough. You could take it, and wring it, this way, and the wheat undergoes a change while it is going through this sweat in the stack. It comes out plumper and it has a better color, and it has a better taste, and better flavor, and it is better adapted for milling purposes. Well, now then, as soon as the wheat has become dry in the stack, it is threshed and put in bins. Now, the wheat undergoes the second sweat, in the bin, and when it becomes dry, there, it is in prime condition for milling. It is in prime condition for milling. It makes a good flour, and that is what we call a prop- erly aged and conditioned wheat. Now, as to the cause of these changes, we have been in the habit of looking at them just as—we say they sweat. That is, the physical—the ex- ternal evidence that some kind of changes are going on. We now know that these changes are due to very minute quantities of bodies— 54 _—« LEXINGTON MILL AND ELEVATOR CO. VS, U.S.°OF A. The Court (Interrupting): Professor, don’t lean back. I am afraid you will fall back. . The Witness: No, I won’t. The Court: Well, you keep me nervous. A. (continuing) Well, these bodies are called enzymes. Called enzymes. 160 By Mr. Smith: . Q. What are they called, Doctor? . A. Enzymes. Mr Butler: Enzymes—e-n-z-y-m-e-s—I had the same trouble learning the words. A. (Continuing) Now, these are secreted from Durum grain, and these plants decrease these enzymes, and their office is a digestive one—to digest, and change over. For instance, when the wheat is planted in the ground, these enzymes begin to act on the starch that is stored up in the wheat, and they will turn it into sugar, and it becomes soluble, and the new plant that, has thrown its root into the ground, and its leaf into the air, can drink up this sugar, and build it over into plant issue. There is another enzyme, in there, that attacks the protein, and makes what you cali the gluten in the flour, or the protein in the wheat, and renders that more soluble. Now, whenever you change or alter the condition of a kernel of wheat, there is im- planted in it an instinct, as we might say, to germinate—to reproduce itself, again. Now, you place it in the stack, and it is dark, in there, and warm. It is somewhat warm, and it im- mediately endeavors to germinate. There is a change going on— modification going on of the contents, but there isn’t enough water, there, and sufficient to cause the wheat to germinate, and when it finds it is useless to try to grow in there, it quits. It subsides. The sweating stops. The stack dries out, and the same thing happens again when the wheat is stored in the bin. It tries once more. It has got in another place, and it wants to germinate. Once more it endeavors to do it. Now, if it is taken to the mill—the wheat, at this point, and ground into flour the general impression is that the life is all ground out of that kernel. Well there can’t be a worse misconception. It is ab- solutely untrue. There are millions and millions of cells in the flour that are absolutely intact. They have got the enzymes there. They have got the whole machinery—the whole proto- plasmic matter, and when we come to the form of flour 161 _ there is once more in these cells an endeavor to grow, if you please, and the flour undergoes another sweat. It developes agreeable odors, and so on, like that, and it improves LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 55 in quality and in color, and like that; and this, we call natural aging. Now, as an illustration, just before I left home, I sent my man down to the mill, to bring up some loads of feed. He brought up some sacks, there. When we went to open the shorts it had been standing there in the sacks, until once more this sweat,—this enzymotic work had begun, and it had got so warm that when I ran my hand down there it was almost un- comfortable. Quite a large amount of heat is developed in this natural aging. Well, if you take a raw wheat, and grind it,— that is one that hasn't gone through this natural aging,—you will get some flour but that flour will not be as good as the flour from the properly aged and conditioned wheat. Everybody knows that, and if you happen to bring home a sack of it, as I have done, sometimes, you will surely hear from your wife, because it won't bake right. It won’t make a good loaf vol- ume, and she will say “There is something the matter with this flour, now, and I want you to take this flour back, or have it sent back. There is something wrong with it. It don't work right. It don't raise right. When the bread is baked, it don't have the loaf volume, and it is altogether unsatisfactory.” Now, you take that flour, and leave it a while, and it will go through this aging, or sweating process, and it will improve wonderfully, and I have known where flour like that had been sen: back, and stored in the mill for a while, and sent right back to the house, and it was perfect- ly satisfactory. It would not be so good, though, as flour that had been made from wheat that had been handled and treated just right. Well, now, then, even when wheat has been handled and ground into flour—I mean properly aged wheat,— when the flour is first ground, it is not so good. It needs this 162 other conditioning. This natural aging that it’ goes through, after it has been made into flour. Q. Do I understand the aging and conditioning of wheat for milling, by going through the sweat as you have. described it, is due to the action of enzymes, as you have described? A. Yes. Of course, there are other cell forces at work— this protoplasmic matter in the cells, and there is a balance. One tears down, and the other builds up, but there are chemic- al changes, Q. Now, as to the flour, or quality of flour made from new wheat—that is, wheat that has not been aged or conditioned, compared with flour made from the same wheat, other things being equal, that has been aged and conditioned, what can you say as to that—the quality or flavor of ‘the flour? A. We ean say that the flour made from the aged and con- ditioned wheat is a better flour than that made from the raw wheat, I tried to make that plain to the jury. 56 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. Q. Yes. Now, as respects the flour, or quality of flour, freshly milled, whether made from new or old wheat, as com- pared with the quality of the same flour, after the lapse of time and storage under normal and proper conditions? A. The stored and properly aged flour is always the better flour than the freshly milled flour, no matter what source it comes from. Q. What changes take place in this natural aging of flour, _as respects its appearance, and the various constituents of the flour, if you know? A. In the first place, there is 2 change in color. The flour grows a little lighter colored. It grows to a beautiful, creamy white color. In regard to the gluten, the gluten is improved in it’s toughness, in its elasticity, and it makes a better volume of bread. In regard to its flavor, by going through these sweats, or these enzymotic processes, there are agreeable flavors and odors that are developed, and these appear in the bread, when the bread is baked. 163 Q. Now, as respects the color and appearance of flour, made from new wheat, as compared with flour made from light wheat, which has been conditioned, I would like to get you to speak of that. ; A. The color of the aged, properly conditioned wheat, is lighter, and of a more desirable shade, than that made from the unconditioned wheat. Q. You said the color of the wheat—you meant the— A. (Interrupting) I mean the color of the flour. By Mr. Elliott: Q. The what? A. The color. This is what I mean to say, Mr. Elliott, that the color of the flour made from properly aged and con- ditioned wheat, is better than that of flour made from new wheat, right from the shock to the— By Mr. Butler: Q. (Interrupting) And when you say “better’—the flour is comparatively light in color, or white. I would like to have you say in what respect the color is different, as to hue. A. It is a difference in the shade of the color. The best patent flours have a very—that is, our best patent, from num- ber one Durum, a number one, wheat, are of a very light, creamy tint, and that has been used as a standard, and that flour is very good flour, and consequently, anything that more nearly approaches that peculiar color, is, generally speaking, called better. Now, as far as I am concerned, myself, I like the one, or some of the Durums, better, because it is a great deal darker than all these, but it isn’t my say-so. We are talking, now, about commercial processes, and the commercial LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A. 57 usages—what the millers understand, and what the people understand by preferable colors. Q. What effect upon the color of flour, has the application of the Alsop process. A. It bleaches out the color. Q. Makes it lighter in color,—of lighter hue—of whiter 164 hue? A. Makes it lighter in color. Sometimes it will almost ‘ approach chalky whiteness, depending on how it has been handled. Q. Will it have the effect you have just described upon flour made from new wheat, which has not been aged and con- ditioned? A. On any flour. Q. On any flour? A. Yes, sir. Q. And, the effect upon color of flour is the same, without regard to the grinding of the wheat? Mr. Elliott: I object to Mr. Butler testifying. Mr. Smith: That is leading. Mr. Butler: Well, I think it is a proper question. The Court: You may answer it. Go ahead Professor. A. It tends to bleach. It tends to bleach them to a stand- ard color, irrespective of the age of the wheat, or previous condition, By Mr. Butler: ° Q. What effect would it have upon a clear flour, as re- spects color? A. It would make it lighter. Q. What is the difference, in color, between a clear flour and a patent flour, when neither is bleached. Which is the lighter. A. The patent flour will be the lighter. (. What is the difference in color between a clear flour and a straight flour? Which is lighter? A. A well milled straight flour should have a somewhat lighter color than clear. Q. What effect does the bleaching process have upon the straight flour, as respects color? A. It will make it lighter in color. Q. By the application of the Alsop process for bleaching flour, have you ascertained whether or not any substances are added to the flour, or imparted to it? A. T have. What is the truth in that regard? The truth of the matter is, in regard to that, that the nitrogen peroxide, of course, is added to the flour. (Cer- tain chemical changes, as it unites with the water, makes the two acids, and, therefore, we have nitrates from 58 LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A. the nitric acid that has been added, and we also have nitrites, or nitrous acid, itself, which has been added. Q). Is there water in flour? A. There is. Q. How much, ordinarily? A. Well, with us, it runs from ten per cent to twelve per cent, depending on how the flour has— Q. (Interrupting) In bulk, or weight? A. By weight. Q. By weight? That is, one hundred pounds of flour, or, we will say a barrel,—call it two hundred pounds,—would have twenty pounds of water—twenty to twenty-four pounds of water? A. Yes, sir. Q. And is capable of being extracted directly from the flour? 167 The Court: T can't see the materiality of that. Mr. Smith: You can't go into the question of where these gentlemen have met together. The Court: No, that might be unsafe. Mr. Smith: Your Honor, I don’t think we had better go into that. The Witness: That lets us out, Mr. Elliott. Mr. Butler: Your Honor will observe that it isn’t our side that is afraid. Mr. Smith: Well, I don't care about embarrassing the Doe- tor, too much. The Court: Well, this is only thrown in as a little bit of witticism. Perhaps it is just as well left out. Of course, I mean nothing objectionable to either side, here. Mr. Elliott, I guess, understands that. a ee . Pie a sod a Pas 3) a hate STL RPT. EOC ASSERT FRR = 60 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. By Mr. Butler: Q. Now, as to the nitric acid. Now about that? Is that eapa- ble of isolation? Is it [staple],or weak, or strong, or what does that do, in flour, when introduced by the Alsop process. A. Nitric acid is one of the three most important acids known to chemistry. Q. By the way, is that sometimes called aqua fortis? A. Aqua fortis, or strong water. That is the name for it. It is a very corrosive acid, and you can buy it at any drug store, anywhere in the United States, probably, and it is a very cor- rosive acid, a great solvent, and it unites with metals to form salts, that we call nitrates—a common one that everybody knows is silver nitrate, or lunar caustic, and potassium nit- rate, or saltpeter is well known to everybody, and sodium nitrate is known to every farmer in the country that uses fertilizer— Chili saltpeter. These are very common compounds, that are formed from nitric acid. Now, this acid is one of the most cor- rosive acids known. If you get the least mite of it on your fin- gers, it will turn them to a yellow color, and if it is dropped on clothes, it will burn holes through the clothes, It 168 will disolve all the metals, excepting gold and platinum, and some of the rarer enes, that is to say tin; it doesn't work very well on tin, but all the common metals, it will eat them up, as we say. It will dissolve them, and make them into salts. Q. Now, is there any difference in the changes made in wheat flour by bleaching by the Alsop process, and the changes which take place in natural aging? A. They are not at all comparable. Q. Will you compare them, to the jury, for the purpose of contrasting them? A. In the first place, they are both—both the natural aging and the bleaching by the Alsop process, causes the color to be- come lighter, and, in so far, they are comparable. When we have gone that far, that is as far as we can go. If that is push- ed to its ultimate analysis, the color that is made—the color that is made is always uniform, on the natural bleaching. It doesn’t assume the chalky whiteness that the bleached flour does, when it is bleached, very frequently, at least. Then, again, as IT have already explained. This enzymic action that goes on while the flour is naturally aging, produces agreeable flavors and odors, while on the other hand, the Alsop process introduces disagreeable odors and flavors. By natural bleach- ing, the flour begins to improve, and goes on and improves, and improves, and improves until it gets better—until it reaches, its highest point, we will say. This will last over a period, sometimes, of two or three months or even longer, if it is proper- | PTR NE a AUN EEN RI: — LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 61 ly handled. The flour that has been bleached by the Alsop process is just as good, the minute it comes out of the bleacher, as it ever will be. There can be no change in that flour, that has been bleached. There will be no enzymotic changes. The introduction of these strong acids has caused the enzymes to quit work, They don’t go on, They can't do any more work, and the result is, that the only change that can come to the flour, bleached by the Alsop processes, will be, away 169 along at some time when it is said bacterial action sets in, and the flour begins to go back and decay. The same thing will happen to flour that is naturally aged. All flour has its life. It doesn't live forever, It can't live forever. And the time will come when both of them are attacked by molds and fungae, and various things of that kind, and will begin to decay and deteriorate. Q. Is the digestibility of flour affected favorably or injuri- ously, or at all, by bleaching it by the Alsop process, at the time it is milled? A. LT have made a great many experiments along that line, and I have learned that the digestibility of the bread, made from flour bleached by the Alsop process, is damaged—is in- jured. Q. As to digestibility? A. Its digestibilty is injured. Q. Can you give us an idea of the quantities of these nitrites or nitrite reacting material, that is added by the bleaching by the Alsop process, or that is required to effect substantial bleaching? A. That will depend on a number of factors. Some grades of wheat that are very good grades of wheat, and naturally produce a rather light colored flour, only need small quanti- ties. Other wheats, that produce dark colored flour—yellow flour—requires larger quantities, and the truth of the matter is that nobody knows—the miller, himself, doesn’t know how much peroxide he adds. He simply adds enough to reach a cer- tain color, be it little or be it great. Tn my own experiments, I used from two and a half parts per million, along down the scale—or up the scale, to one hundred eighty parts of nitrogen peroxide. Rv The Court: Q. One hundred eighty out of a million? A. Yes, that is, in a million anything,—a million pounds would be a hundred and eighty pounds of the peroxide, Q. Yes, TL understand. A. (Continuing) Or, in a million grains or a million any- thing, by weight. And we went all the way from two and a SRT ENTREE ORE SPREE ATA PRINCE AOR ETENGLE BN PE SCIOH LS E IPI 62 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF a. half parts per million up to one hundred eighty parts 170 ~=per million. In the flours with which I was working, I reached the points where the flour began to become very white, when I was using from—well, from twenty to forty or sixty parts per million. y. And did you observe the effect upon the color? A. I did. Q. Of the application of various quantities? A. I did. Q. From this two and a half parts per million, up to one hundred eighty parts per million? A. I did. Q Now, will you explain to the jury what the color is,— that is, what are the primary colors, alone or in combination, in the wheat flour? ‘ A. The coloring matter of wheat flour, or the color of wheat flour, as we see it, is not a simple color. It is owing to a mixture of two colors. We all know how different colors can be mixed, and they will produce another color. Take two colors, mix them together, and you will have something of a different color. Now, the color of the wheat flour con- sists of two of the primary colors. One is yellow, and the other is orange. Now,— Q. (Interrupting) In what relation? Well, go ahead. A. (Continuing) Now, the darker colored wheats have more of the orange. The darker colored flours have more of the orange and the lighter colored have more of the yellow. The yellow isn’t so pronounced, you know, just a light yellow —a very light yellow, and the rage, of course, has quite a deeper shade, as you all know. Q. Well, now, is the effect upon both primary colors, the same, upon the application of this bleaching medium used in the Alsop process—that is, does the orange and yellow reduce equally, as the process goes on? A. No, they do not. Q. Can you give the— A. (Interrupting) They both begin to fade. Would you like the exact figures. Q. Well, generally, the substance of them, and later T will. A. Yes. The orange begins to fade away. It fades away, first. The yellow also fades away, but you will soon reach a point, if you keep on adding more peroxide, where the orange disappears entirely, and, no matter how much you add 171. += after that, that orange color never will come back again; but, when you get down very near to the zero point on your yellow, when your flour is almost chalky white, you put in some more peroxide, and the yellow will begin to come back again, and, as you add more, you will notice an in- crease of the yellow color. There is a point, but it is not of practical importance, IT am sure, in this case, because the millers don’t go to that point, because they couldn't sell their LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 63 flour. If it were overbleached, you would find you had very much more yellow, in overbleached flour. That is, where it was away over-treated. You would have very much more yellow, than the flour when you first started. Q. That is, by keeping the flour exposed long enough, in one of these agitators, it will turn yellow? A. Yes, and by adding more gas to it. Q. Yes, or by more gas, owing to either the increase of the strength of the medium, or the increase of the time of the exposure, I suppose? A. That would be immaterial. It would be immaterial ax to that. Either one would affect it, provided you main- tained a constant supply of your gas, at the one common dilu- tion. Q Now, I want to get the effect upon the quality—the odor—the color of the flour, the odor, and the taste, and the smell and so forth, after this bleaching has eliminated all of the orange, and has reached such a stage that the yellow begins to increase. A. Well, the odor of flour is destroyed when it is bleached, ne matter how much you put in, Just two and a half parts per million, will give to that flour an odor that is very dis- agreeable, to me, and at the point you have mentioned, it is simply a question of intensity, and not a question of kind. It keeps smelling a little worse and worse, because a little stronger and a little stronger, that is all. Q. Now, have you prepared figures, showing the result of vour color measurements, its against applications of different amounts of bleaching, by this process?) A. I have. 172 +. You may refer to them. A. (Producing paper) T use two kinds of flour. First, patent flour. That is, a genuine patent flour, and also st raight flour. My criginal patent flour, unbleached, had twelve points in the orange, and thirteen in the yellow. Q. That is, the amount of primary color? A. Of the primary color. Q. As of twelve to thirteen? A. Yes, when I added two and a half. By Mr. Searritt: (). How was that? A. Twelve. It is a decimal. By Mr. Butler: Q. It has a point before it? A. Twelve hundredths, and thirteen hundredths, on the Lovebond scale, but we can speak of these as points, and that will make it plain te everybody. By Mr. Helm: Q. Twelve of orange, and thirteen of yellow? A. Yes. 64 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8S. OF A. By Mr. Helm: Q. That is, twelve and thirteen, before any of the flour Was treated? A. That is the natural color of the flour. By Mr. Butler: Q. Which flour was that—the straight or the patent? A. That was a patent flour, made from Dakota number one winter wheat. Q. Go on. A. I added four and a half—four and five tenths parts _ per million of peroxide. My orange sank to two. That is, .02 —two points, in the orange, and my yellow, which was thir- teen, sank to eleven. You see, there is a great difference. The orange goes faster. When I use—I won't name all of them. It will illustrate it, when I used as high as eighteen parts peroxide, per million my orange didn’t seem to 173 be affected, there. It may have been .02 and my yel- low fell to .06. That would have been probably the op- timum point for bleaching that flour. Eighteen parts per mil- lion would have brought that flour down to about what I un- derstand the standard color is, that they are working to. Now, when I used seventy-two parts per million of peroxide, my orange fell to zero, and my yellow rose to eleven. I will give one other figure. When I used one hundred eighty parts of peroxide per million, the orange still remained zero, and the yellow had risen to thirteen—, just -the point where I started from, on the vellow. Q. You started at thirteen? A. I started at the point, thirteen, and it came back to thirteen when T had used one hundred eighty. On the straight flour, the natural color of the straight flour is fifteen points in the orange, and twenty in the vellow. The Court: Twenty? A. Twenty, ves, sir. It is darker, you see. As compared— it is made from the same wheat. The Court: I understand. By Mr. Butler: Q. That is, straight? A. Straight flour. Q. Yes? A. I will only give two more. When I used forty parts— when I used [seven-two] parts per million on the straight flour, my orange sank to .04, and my yellow came down from twenty to fourteen, with one hundred eighty parts. Once more, my orange became zero, but my vellow had risen to nineteen. I started with twenty, and I got it back again. REGO LEE DBE OE NE CONES LIOR RHE PS Te LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A. Mr. Helm: How many parts did you use, there? Mr. Butler: One hundred eighty. The Court: One hundred eighty per million? A. Yes sir. By Mr. Butler: Q. Now, suppose ihat flour subjected to this process had eighteen parts applied—eighteen parts — per million,—what amount of nitrite reacting material would be recoverable by treating the flour by water, if the analysis was made 174 immediately afterwards? Have you studied that so as to be able to transpose that into other terms? For ex- ample, take eighteen parts per million of nitrogen-peroxide. You have told us that that produces nitrite reacting material, in the flour. Now, suppose you analyze the flour immediately, or soon? A. Within a day or two? Q. Yes. How much of these eighteen parts of nitrogen peroxide would be accounted for? A. In my analysis? Q. In your nitrite reacting material, so recovered, is what I am trying to get at. A. Yes. Well, IT made a great many experiments along that line, and, under no circumstances can [ recover it all—that is, the theoretical amount. But I have been able to recover, as nitrites, from ten to fourteen per cent, From ten to four- teen per cent_as nitrites, of all the peroxide used. That is, if I use eighteen parts peroxide, I could get back ten parts of it as nitrites reacting material—ten per cent of it, I would say. Q. Ten per cent of it? ‘ A. Yes. That would give me 1S as nitrite reacting material. Q. For example, then, if by testing for nitrite reacting material, the flour, a day or two after it had been bleached, vou would find two parts per million of the nitrite reacting material, that would indicate how many parts of nitrogen peroxide added? A. Well, in a general way, but not absolutely and scientifi- cally, because there are changes going on all the time and these changes depend on two things: First, how strong 18 your acid, How strong is your peroxide. The second, what is the temperature and, third, under what condition has it been stored? But there is a constant loss of this nitrite reacting material, all the while. That is, it disappears as nitrite react- ing material, only to hob up as something else, a little farther 5— 3533-3534 66 LEXINGTON MILL AND ELEVATOR CO. VS, U. 8S. OF A. on, as we will see. So if we should find, say two parts of 175 __—sinitrite reacting material, and we know that the flour was freshly bleached, we would be pretty safe in saying that at least twenty parts of peroxide had been used in bleach- ing the flour, and, if the flour had been stored for a longer time, and the conditions were unknown, it might be not only twenty times that, but it might be five times twenty times, of it might mean anything on earth. We couldn't tell anything much about it. Q. And what is the effect of lapse of time, upon the amount of nitrite reacting material recoverable by this test? - A. It is constantly reduced. Q. That is, under any ordinary conditions? A. Under any conditions. Q. Under any conditions? A. Under any conditions. Q. And what becomes of it. Can that be told? A. I believe we know what becomes of it. Q. Well, tell us what becomes of it. Mr. Smith: I didn’t catch the answer. Mr. Butler: He said, “I believe we know’, as | understand it. The Witness: Yes, sir. The Court: Repeat vour answer; the gentleman didn’t hear it. The Witness: I was just thinking about how I wanted to state it. Mr. Butler: But, vour answer was,—lI asked you if it| was known what became of it, and vou said that it was. The Witness: Yes, I did. Well, [ think—well, I went to say, I think—I know—“know it”, that the nitrous acid and the nitrite reacting material is being constantly changed — into nitric acid and that will account for the disappearance of our nitrite material. But there are other ways by which it disap- pears. Some of it will evaporate. That you can’t help. Some of it will be lost by evaporation. 176 Q. Some of it will? A. Yes, but not a very large quantity, that way. This gas seems to be held by the water that is in the flour, and also by coming in physical contact with the flour, itself. And, so far as I know, we haven’t any evidence now, that this nitrite reacting material, as we call it, is much of anything — else, except free nitrous acid. Mr. Helm: Did you say nitrous acid? A. Nitrous acid, yes sir. SR eee et ee ETP ROR TI, LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 67 The Court: I guess, Mr. Butler, we will stop at this point, il two o’clock, to which time Court is in recess, (Recess taken accordingly ) Two o’clock P. M. Thursday, June 2, 1910. The Court: That gentleman may assume the witness chair. James H. Shepard, resuming the stand, was examined further, and testified as follows: The Court: Read the last question and answer, please. (Question and answer read as requested ) The Witness: I didn’t quite finish. Mr. Butler: You may go on, and finish. A. It may be that some of the nitrous acid could be combin- ed with metallic bases, but the probabilities are somewhat against it. Q. (Handing the witness a bottle) 1 will call your atten- tion to a bottle, which may be marked, “Government's Ex- hibit 6”, and ask you if you know what it contains? A. I do. Q. What does it contain? Mr. Scarritt: I can't quite hear your questions, The Court: He asks what this bottle contains. The 177. ~—witness says he knows. By Mr. Butler: Q. What does it contain? : A. It contains a mixture of nitrogen-peroxide, and air, about one part—approximately one part of nitrogen-peroxide, to four of air. The Court: One to four? A. One to four. By Mr. Butler: Q. About one to four? A. It is dilute. Q. And that is the same substance that is generated by the flaming are in the Alsop process? A. It is the same substance. Q. And the same substance which you described this morn- ing, ax a heavy poisonous gas? A. Yes, it is. The Court: Is it offensive, Doctor? A. It is offensive. Nee Ree ae ne ea er a a le ee AOY ‘ Bae 5 DEEN NAAT 68 LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A. By Mr. Butler: Q. Gas, like all gases, it can be poured from that bottle into a cup or beaker, like that? A. It will. By Mr. Butler: Q. Perhaps there ought to be a tag or something, put on that bottle, if it is desired it be retained. What is your wish about that, gentlemen? Mr. Smith: I don’t know as I have any. Mr. Butler: Well, then, I will ask that you open the bottle and show the substance to the Court, as it will pour from that bottle into the other vessel. Maybe the Court or Jury would like to— The Court: (interrupting) You say that is | one — part peroxide and four of air? The Witness: Of air, yes, sir. It isn’t pure peroxide. That is, what I mean by that, it isn’t concentrated peroxide. The Court: Doctor, would you please stand around here, so both the jury and counsel can see you. 178 The Witness: Now, the light, of course, is not very favorable. If the gentlemen of the jury will notice, I think you can see the color begin to show in the bottle. Mr. Butler: If you would put a white sheet of paper back of it, perhaps it would show up better. The Witness: I would suggest it would be a good plan to raise that shade, there, so we can get a white effect on it. By Mr. Butler: Q. (Handing witness a white sheet of paper) If this is any use to you, you may use it. The Witness: Thank you. Of course, if this were pure per- oxide, it would pour much more readily, and I will have to pour somewhat carefully, and you are to look down in this jar, and see the color appear down there. Now, if this were lighter than air, when I go to pour it out, it would go up, and go away. The Court: Well, now go ahead and make the demonstra- tion. A. (Continuing with demonstration) I don’t know if vou can see, as the air comes up in the jar, the air goes in on the upper part, just as if it were a liquid and, I think you can already see it, can you not ? A Juror: Yes, sir. a SS*. es ba an POINTS NMR TRI MT RET EER TE ee TY PeRTAS as LEXINGTON MILL AND ELEVATOR CO. VS, U. 8. OF A. 69 A. (continuing)—that I am getting color here, in the jar? (exhibiting the cork taken from the bottle marked as Govern- ment Exhibit 6) You can see the corrosive action of it, too, if you want to. You can see it has been eating the cork. It has only been in there about fifteen minutes. You see, the cork is all turned yellow. If I put my hand on it, just as it stands, it will turn it yellow. Now, it isn’t a very pleasant thing to smell of, but a body can do it, with a sweep this way (indicating). If you want to get a little bit of the odor— if you want to get what the peroxide smells like, you can do it by sweeping your hand over it, that way. You can get some of it, mixed with the air. Shall I offer it to the jury. 179 Mr. Butler: I will leave that to the Court and Jury. The Court: Yes. The Witness: (to the jury) So you can see for yourselves. Of course this is diluted, now. The color is almost all gone. A Juror: I can smell it. The Witness: You see, it diffuses quite rapidly from the bottle. You can also, see, now, some whitish fumes, form- ing there, can you not? You see kind of a smoke? A Juror: Yes. The Witness: That is when it is uniting with the air, to form tue two acids I told you about. Won't you just take it in your hands and get a little odor, and then pass it on? (handing bottle to the jury) No, not too much (toa juror). Mr. Lyons: Give that to the stenographer, to be marked, please. : (Exhibit marked, “Government's Exhibit 6”) Q. Do the nitrites which are added, or nitrite reacting material, which is added to the flour, remain in bread made from the flour? A. It does, to a certain extent, Q. And some recoverable from the bread? A. Some of it is, yes, sir. Q. And you made some experiments—tests, to find out the relation between the nitrogen-peroxide, after bleaching flour— the amount that can be recovered from the flour, in a day or two after the bleaching, and the amount that can be recovered from bread made from the flour? A. T have. Q. You may give the jury the result of your experiments in that regard. A. T made totals of the same flour, using different samples and employing different quantities of peroxide to each sam- ple. Then we baked this into bread, also baked some un- EDA RIAL NTT IR REE PERE OR 70 LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A. bleached flour into bread as a comparison. I found that I could recover—well, I will give two or three figures which will indicate—where I had used four and five-tenths 180 parts of peroxide per million on the flour, that I could recover .56. By the Court: Q. From what, flour or bread? A. On the flour, after two days. Q. After two days? A. Yes sir; then I baked it into bread, and found out that the bread had of these fifty-six parts, it had forty-four of them. That is, in this particular experiment I recovered 78.6 per cent in the bread, of what I could recover from the flour before I baked it. I followed this along down through, using con- stant!y increasing quantities of peroxide, respectively 9, 18, 36, and so on up to 180, as before, and I find that where I had used very large quantities, strange to relate, of the peroxide I recovered smaller percentages in the bread; so that in the higher quantities, where I used 180, I recovered only and IT found 22 in my flour—no, I found 26 in my flour, excuse me, I got baked .22 in my bread, or only about .3 per cent. By Mr. Smith: Q. Is that 26.? A. The exact figure is 26.4, whole number—26.4, and I re- covered .3 per cent of that, or 22 parts, .22. By Judge Scarritt: Q. 3of 1 percent? A. 3 of 1 per cent, yes, sir. Q. Now, that was on patent flour. By Mr. Butler: Q. Now, before you go on, let me see if I understand the things you are talking about. Take the first set of figures you gave us. A. Yes, sir. Q. The four and one-half parts per million of nitrogen peroxide. A. Yes. Q. That was the amount of this gas which is contained in the bottle Exhibit 6, only very diluted, being four and one- half parts to the million? A. Of flour. Q. Of flour, was used to bleach the flour. Then you re- covered .56, a little more than a half of one part, per 181 ~=— million, of flour, from the flour? A. From the flour itself. . Now, what was it you recovered, is that the gas—N O 2 or nitrogen? A. This is all computed to N O 2 of peroxide. Q So that these figures are all expressive of the same thing? LEXINGTON MILL AND ELEVATOR CO. VS. U. 8S. OF A. 71 A. Expressive of the same thing and the bread is reduced to the same water contents as the flour. Q. Go on. A. Now, in the straight flour I used eighteen parts of peroxide per million, and I could find in the flour 1.98 part. I recovered in the bread .33 parts or 16.7 per cent. Now again I will give two more. Where I found 7.92 parts in my flour, I only got back .33 parts in my bread, or i recovered 4.2. Now, in the next case where I could find 9.90 parts in my flour I did not recover any in my bread at all. So that T have reached this conclusion, that the amount recoverable in the bread is going to depend on several factors. Bread can be so made by using large quantities of yeast and other expan- sion and allowing the yeast germs, and so forth, an oppor- tunity to consume this material that we put into the flour, that very little of it might be recovered; but I want to say this, that that is not the way that bread is made in our or- dinary households at all, the way the ordinary housewife bakes it, if there is any appreciable amount of peroxide to be re- covered in the flour, a goodly percentage of it will be recovered in the bread. ©. What is the reason for a decreasing percentage, as you increase the amount of gas used, in large amounts like 180 parts per million, of gas, to the flour, in the patent flour, you only get three-tenths of one per cent of that added? A. Yes, sir. Q. Whereas, when you use four and a half parts only per million, you get 76 per cent of that added? . A. Yes, the explanation of that, according to my under- standing, is as follows: Where I have used such large quan- tities I have overtaxed the absorbtive power of the 182 flour, and it is not able to hold it so well as I did where I put in smaller quantities. Now, then, when I come to reduce it to percentages, while the amount that I actually found in the bread was about as much as it was where IT used the smaller quantities of peroxide, when I came to reduce it to percentages, why, I have got such a tremendously high divisor that the percentage sinks very small. Q. Well, the precise figures that you give us at four and a half you found forty-four parts being nitrates? A. Yes. Q. At 180 you found twenty-two parts? A. Yes, sir. Q. In the first instance 76 per cent of all that could be found in the flour, in the second instance only .3 of 1 per cent of all you found? A. So it is not so much the absolute amount that T found in the bread, you see there was not such a tremendous de- crease, the amount of decrease ran from—well, T got 8&8 parts down to 22 parts,—that is rather the extreme decrease, but 72 LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A. when I come to reduce it to percentages, well, I divide 44 in one case, .44 or .56 to get my 78.6; here I am dividing my 22 by the whole number 26.4, a high figure, you see, and it makes the percentage low. Q. Did you use yeast in making this bread?) A. I did. Q. Now, you testified this forenoon that nitrogen peroxide employed by the Alsop process for the bleaching of flour dam- aged the gluten of the flour, as T understood it, or injured it? A. Yes, sir; I believe it does. Q. Now, the gluten of the flour is usually about what pro- portion of the flour, what per cent? A. That depends, of course, on the variety of wheat, but I would give as the average figure 11 or 12 per cent; | have known it to run as high as 14 or 15, but LT should judge around 11 or 12 per cent of the flour is gluten. Q. And is the gluten a portion that is valuable as food? A. Oh, that is the most valuable part of the flour. Q. It has the greatest nutritive value; it has the greatest nutritive value, T understand? A. T would not hardly like to express it that way, Mr. 183 = Butler. The gluten or the protein foods are the scarcest and the highest priced articles of food which we buy, as exhibited in the lean meat and eggs and so on; it is more expensive than potatoes, which are all starch, that we want to understand; and the reason for that is because it) takes gluten to build up the muscle tissues and bones, and repair that waste, and so as a tissue builder it is the most-—it is the most valuable, but still those other things have value alse; so we must have our heat and energy. If we didu’t have enough to keep up our heat and energy, why— Q. I intended to make my comparison between the gluten in the flour and the other ingredients of the flour? A. Yes, sir, the gluten is more valuable than any other ingredient of the flour. We can replace the starch of the flour by using a potato if we want to, but we cannot Q. Will you give us the result of your study with respect to the amount of damage to the gluten of the flour resulting from the use of various amounts of this nitrogen peroxide gas employed by the Alsop process? A. Yessir. I took the same flours and some unbleached and some bleached. I determined the total nitregen, as we put it, which is an index, amounts practically to the same thing as the gluten or albumin, only we multiply the nitrogen by 6.25, to reduce it to albumin, so T have given the nitrogen only, and | will speak of this as total nitrogen and albumin nitrogen and amido nitrogen, Now, I think T ought to make a little explana- tion to the court. and jury as to what T mean by these different expressions, T presume they would not be quite familiar with LEXINGTON MILI. AND ELEVATOR CO. VS. U.S. OF A. 73 them. This protein that we have been talking about, or gluten, now, there are three or four names that apply to it, depending on how you are thinking of it. Sometimes we call it albumin, sometimes call it) gluten, sometimes call it protein. The words mean about the same thing for practical purposes, in this trial they will mean the same thing. Well, now, then, this gluten or albumin or protein’ is distinguished from all other food — stuffs 184 = because it has nitrogen in it; the others do not have nitrogen; that is, the starch has no nitrogen,—so | have got the expression total nitrogen, that means all the nitrogen L could get out of the flour. Then IT have got the al- buminoid nitrogen, that means a good, digestible gluten, —that is the part which is digestible, so the albumin is part again, I have got the term amid-nitrogen; now, that is something that we use continually in agricultural chemistry and feeders of stock the world over, and it is generally accepted that this amid-nitrogen is not digestible; it isno good; it goes through and is voided in’ the manure, and = so when we are valuing a stock fool or a food for a human being we depend on our albuminoid nitrogen, Now, then with that explanation I will try and tell you in my unbleached flour,—but first of all I will say that by treatment I did not change my total nitrogen as determined by many careful duplicate determinations; and IT would eall your attention to the fact also that we are making thousands and thousands of these determinations every year. I have been to work at it now for five years making these, and they have been made with all the care and skill that modern apparatus and human ingenuity could devise, because T wanted results, and T wanted them just right. Now, the total nitrogen was 2.16 all the way through. Our albuminoid nitrogen in the unbleached flour was 2.06. Where T used nine parts — per million, it fell to two, (). The albumin fell to two? A. The albuminoid nitrogen fell to two; and where T used 180) parts it fell te 1.97, Mr. Elliott: Your, Honor, for the purpose of an objection I would like to ask this witness how was this flour bleached that vou are talking about? A. TL bleached it) myself. Q. With what? A. With nitrogen peroxide. Q. Did you bleach it with the Alsop machine? A. Not with the Alsop machine, Q. Twill ask vou if vou have analyzed the gas of the Alsop machine, and if vou know the proportion of peroxide in 185)~—it to add? A. No, I have not. 74 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. Mr. Elliott: Then I object, Your Honor, to this testi- mony because it is not the process that was used by the claim- ant in bleaching his flour, and it is not germane to any—TI mean any effects that Professor Shepherd got bleaching in his laboratory with pure gas, is not germane to what the Lex- ington Mill did, using the Alsop process, Witness: Mr. Elliott, just one word of explanation, The Court: Just wait a minute, Objection is overruled and the claimant excepts. Witness: I would like to state to the gentlemen of the jury that I of course used a mixture of air in nitrogen peroxide, Judge Searritt: Let him state the fact. The Court: Yes, state the faet, Doctor. By Mr. Butler: Q. Let me ask you a question, in view of the assertion made by Mr. Elliott, which T have no doubt is all true, but T did not understand in that way. You stated that vou employed pure nitrogen peroxide to bleach the flour; T understood you to sity | that there was only nine parts of that per million? A. Of flour. Q. And was all diluted with the atmosphere? A. Oh, many, many times; [ only used four or five cubic centimeters of the pure nitrogen; [ had four liters of air. Q. That would be in percentages what? A. Was very much—was very, very much diluted: — it would compare well with the Alsop. T want to be fair about it; I made it to compare as near as TL could with what tikes place in the Alsop machine. Now, if you will allow me to return once more, Twill say, now, that in the unbleached flour [ found 2.06 of albumineic nitrogen, and that fell to 1.97 where T used 180 parts, By the Court: Q. Per million? A. Parts per million—no, this is percentage, exeuse me, percentages. Then what happened, we see there is a constant diminution then of the albuminoid nitrogen. 186 Now then, in the amid-nitrogen, the amid-nitrogenous compo ind of the flour, [found in the unbleached flour 10 of 1 per cent, .10; and then in the next one where T used nine parts per million it rose to 16; where T used 36, it rose to 19: where I used 180, it rose no higher; so T had an inerease of from 10 parts to 19—understand that this is dealing in one hundredths of per cent, but it is a remarkable thing, that with LEXINGTON MILL AND ELEVATOR Co. VS S. OF A. 75 these minute quantities that my experiments all went the same way; they all went the same way, and it shows what is going on. Judge Scarritt: We object to this argument, if Your Honor please. Let the gentleman confine himself to the facts and we'll get along faster. e By Mr. Butler: Q. Let me ask you a question, Now, vou have given us three instances, bleached tlour, nine parts nitrogen “peroxide per million of tlour, A. Yes, Q. And 180 parts nitrogen peroxide per million of flour? A. Yes, sir. Q. And in each instance of the bleached flour the albumin- oid nitrogen decreases and the amid-nitrogen increases? A. Yes, sir. Q. LT want to ask you whether vou used any other instances with different amounts of nitrogen? A. Oh, ves. Q. Now, suppose in this matter that you give each step, the whole series of experiments, to see whether or not the al- buminoid—digestible nitrogen, decreases, and whether the amido, undigestible nitrogen, increases as bleaching is inten- sified? A. With no peroxide the albuminoid nitrogen was 2.60, With nine parts per million it was 2.00. With 36 parts per mil- lion it was 1.97. With 180 parts per million it was 1.97, just the same, Q) And now the amido, A. With the unbleached flour the amido nitrogen was .10 of 1 per cent. With nine parts flour .16 of 1 per cent. With 26 parts it was .19 of 1 per cent. With 180 it was .19 of 1 per cent. This was on the patent flour. T have figured also on the straight flour, Q. TL would like to have those ? A. On the straight flour, unbleached, the aluminoid nitrogen is 2.13. With 36 parts per million peroxide it is 2.12. With IST 72 parts per million it is 2.12, and with the 180 parts per million it is 2.10, Q. The amido-nitrogen? A. Now, the amido-nitrogen is unbleached .07. 36) parts OS. With 72 parts it is 08, and with 180 parts it is .10 of 1 3 per cent, : Q. You told us that in vour opinion the bleaching of flour 3 by natural peroxide gas, according to the Alsop process such as was used in this flour seized in this case, impaired the di- 76 LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A. -gestibility—I don't now remember whether you said digesti- bility of the flour or of the bread—what is the fact in that re- gard. A. Why, the digestibility of the bread made from the flour is impaired. Q. Is the digestibility of the flour also itself impaired, or have you made any experiment on that? A. I have made no experiments on that because a man does not usually eat raw flour. Q. Now, | wish you would explain to the court and jury how the digestibility of bread, for example, or of any substance, may be arrived at by fermentation, artificial digestibilitv—I suppose that is not very clear to ordinary men not familiar with work in chemical labratories. A. Well, in the experiments which IT made on the bread, it had reference to this same gluten or protein or albuminous substances, and that digestion is all carried on in a man’s stomach, that is, nearly all of it, part of it, of course, is finish- ed in the lower intestine, and we know the composition of the gastric juice that is in the stomach; we know just exactly how it is made; so we prepared a solution of gastric juice that is identical with that of a man’s stomach with the same pepsin in it, and the same hydrochloric acid contents: Then we take samples of bread that are made from unbleached flour, or from bleached flour, or anything that we want to test, and, as a matter of fact, I placed absolutely equal samples in a tube that I made. [| took a test tube and cut the bottom of it off, a tube about eight inches long and about three-quarters of an inch in diameter, and I put a very fine muslin strainer over one end ; then [ dropped my bread right down into that, and then 188 I could shove the tube, vou see, down into my artificial gastric juice. Now, PT knew just) exactly hew mach material I had before IT began my digestion; and when T tiad allowed this digestion to go on for a certain length of time, | could raise my tubes out, wash off the adhering digestive solu- tion and stop it. Then T determined how much was left. It is a very simple process. Q. Now, you may give us the results of your determinations. A. First, of course, [ used my unbleached flour as a stand. ard, and IT determined the nitrogen again, as being an indica- tion, because that is the usual wav we do, and | found where I had used no peroxide that it left in my tube, after my digestion was over, 1.55 per cent of nitrogen. By Mr. Elliott: Q. For the purpose of a possible objection T would like to ask the witness a question or two. What flour did you use in conducting this experiment? BSS GG Ate ae Be bbe ty Bae op gd be LEXINGTON MILL AND ELEVATOR CO. VS, U. 8. OF A. 77 A. With this particular one that [am reciting, it was a first patent flour made from Dakota No, 1 Northern. Q). Take different parts of that same flour bleached and un- bleached? A. LT did, ves. (Q). How did vou bleach it? A. L bleached it in my laboratory, as I have explained. Mr. Elliott: Counsel for claimant objects to the introduction of this testimony as not germane to the issue in this case, and as having no bearing whatever upon any possible effect the use of the Alsop process might have on flour treated by it, The Court: Objection is overruled and claimant excepts. A. T found undigested in the uableached flour 1.55 of nitro- ven. Then where T used 18 parts per million of peroxide I found 1.58 parts. Where [used 36 parts per million on the flour T found in the bread undigested 1.58; and where T used 72 parts per million T found 1.59. By Mr. Elliott: Q. What is the last number? A. 1.59. | think it is, it is a little bit obscure; T wont be quite positive of it, Tam sure there is a miscake in this table, it is 1.59 or something of that sort—159. But T have ISM figured over the loss in digestibility as compared be- tween the unbleached bread and that that has been bleached, In the first case where LT used 18 parts per million I had a gain of 7 per cent in digestibility, that went that way, that is, 7 per cent more of it digested, than it did where U didn't have it bleached at all. In the next case there was a loss of digestibility of 8 per cent. In the next case there was a loss of 14 per cent. Now, proceeding in the same: way with this straight flour T obtained losses in digestibility respectively, 18 per cent, and 5 per cent and 20 per cent, as against the same flour unbleached and baked into bread. These losses are small but they prove the contention that the- Judge Searritt: TL object to his statement. That ix argu- ment for lawvers to make, Mr. ‘Butler: Tt is very customary, TE think, for chemists after experimentation, to express the view whether it estab- lishes a conclusion or not.\ Judge Searritt: We object to that. Q. Mr. Shephard, |) want you to express an opinion upon this question: Does or does not the amount of nitrite reacting material recoverable from the flour measure exactly or cor- rectly the amount of injury done by bleaching, + SE 78 LEXINGTON MILL AND ELEVATOR CO. VS, U. 8S. OF A. Mr. Elliott: Your Honor, [ will object to the question unless it is properly limited to the Alsop process. Q. I mean by the Alsop process such as is admitted was used with respect to the flour seized in this case and referred to in the pleadings and defined by the testimony already in. Mr. Elliott: I simply mean that I think the witness ought to distinguish in his answer between his laboratory bleaching and bleaching by this process. Mr. Butler: Well, I will ask a question about that, some objection has been suggested, I withdraw this. Judge Searritt: And ask another in view of Mr. Elliott's objection? Q. Some question kas arisen by reason of Mr. Elliott's objection here, whether or not like results are produced 190 from bleaching by nitrogen peroxide employed as you employed it in your laboratory, or as employed by the Alsop process which you have described. T will ask you whether or not there is any difference in the effect in the flour? A. No, the results are identical. Q. Now, I will renew my question, whether or not the amount of nitrite reacting material recoverable from flour is a true exact index of the amount of damage done by the bleach. ing by the Alsop process? Judge Searritt: We object to that as not being a proper expert question, invading the province of the jury. To ask him what effect each one of these processes has, it seems to me would be proper, but for him to conclude and decide just exactly what the jury has got to decide, is improper and in- vading the province of the jury. Mr. Butler: [Tam sure from Judge Scarritt's objection that I have not made my meaning perfectly plain in the question, Judge Searritt: Possibly not. Mr. Butler: My point is this— Judge Searritt: IT thought vou were going to ask another question, [ thought you were; LT would like to have a ruling on that as it stands pow unless he withdraws it and asks another one. Mr. Butler: You didn’t understand it the way [ intended it, and I am sure it is the fault of my question, and perhaps I had better try again. The Court: That question is stricken out from the record. Put it again. —— LEXINGTON MILL AND ELEVATOR CO. VS, U.S. OF A. 79 Q. 1 received the impression from your testimony this morning that nitrites are recoverable from bleached flour, and that the amount recoverable varies under varying condi- tions and the lapse of time. Now, given a specimen of flour which has been bleached, which is found in the market with- out knowledge of its aistory, the amount of nitrogen peroxide , used, the time of using it, with respect to the time of 191 examination, then IT ask you whether or not analyzed at that time and the recovery of nitrite reacting materi- al will be a true index of the amount of damage inflicted by the bleaching? That is what I was trying te get at. Judge Searritt: hat is calling for an opinion—expert conclusion. It is a metter for the jury to decided; he can tell what effect it would have at that time, but how much dam- age was done is purely a question for the jury; that is the very proposition that they are here to decide, By Mr. Butler: Q. I did not mean damage in the sense of dollars and cents, | but IT mean injury. . Judge Searritt: The question of adulteration is before this jury; that involves the decision of that question; the answer | to that question involves the decision, The Court: Objection is overruled and claimant excepts. Witness: The amount recoverable under such circumstances would be no index to the amount of peroxide employed. Mr. Elliott: TP object to the answer as not responsive to the question, and move to strike it out, Mr. Butler: Well, To will ask another question to | cover that, The Court: L understood he was going to ask another question, Mr. Smith: That leaves that one in the record, Our notion to strike out has not been passed on by Your Honor, and he has net withdrawn his question. The Court: Tt will be stricken out. iy Mr. Butler: (). My question was to the extent of damage, and not the amount of nitrogen peroxide gas used, A. LT apologize, E had another thing in mind. My answer to that is that it is ne index to the amount of damage done to the flour. 80 LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A. Q. How about the question whether or not it is an index to the amount of nitrogen peroxide gas used? A. Not under those circumstances, a man couldn't _ tell anything about it. Q. Have you determined whether or not nitrite react- 192 ing material which was added to flour by the Alsop process is or is not all soluble in water? A. I have not determined that one point strictly as that, but I have determined that it is not all recoverable by solu- tion in water, we cannot recover the theoretical amount. Q. That is what I mean. Have you ever made any study or examination to determine the effect upon wheat of nitrogen peroxide gas from the enzyme in the wheat, or enzymotic ac- tion or diastase? A. Not on the diastase of wheat. Q. Or the flour? A. I have on the diastase of barley, not of wheat or flour. not of wheat. Q. Well, from your study have you an opinion with re- spect to that as concerns wheat; that is, would your deter- minations in barley be enlightening as to the enzyme as respects wheat? A. Why, there is practically no difference between the two diastases, barley and wheat. Q. Explain that to the jury, explain what is meant by diastase, “A. The diastase of the grain is what I told vou was that enzyme that will change the starch into sugar so that when the plant sprouts it can eat up the starch, consume the starch that is in the berry. Q. Now, what is the effect of gas on the diastase of wheat? Counsel for claimant object because no proper foundation having been laid and the witness not showing himself com- petent to testify. The court overruled the objection; to which ruling claimant then and there duly excepted. A. I found that where [ used 80 parts per million of nitro- gen peroxide that it prevented the diastase from acting, I could not get any digestion at all. Where I used 40 parts of per- oxide per million, that there was a delay in the action of the diastase as compared with one where no peroxide was used, of 121 per cent. Q. That is, as I understand it, 80 parts per million of this gas, nitrogen peroxide gas, inhibited digestion? A. 80 parts per million, ves, sir. Q. And that 40 parts per million increases the time 193 120 per cent, is that it? A. 121. Q. It would all digest, but it takes more than twice as much time, is that the idea? A. Yes, sir. LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 81 Q. 121 percent? A. Yes, sir. Q. The amount of nitrogen peroxide gas employed in those divers cases in your determination was 80 parts per million, 80 per cent of nitrogen peroxide gas to a million parts of what? A. A million parts of solution; that indicates the concen- tration, the strength of it. That would mean just the same * as when we say of the flour that we had 80 parts of the per- oxide to a million of flour. Q. Parts of flour? A. Yes sir. Q. That is what I was trying to get at, whether or not the relation in quantity which was used was the same in terms as in case of bleaching flour. What would be the standard, it has been suggested to me, between 80 parts nitrogen per- oxide per million of this solution to the amount of nitrogen involved? A. I hardly think T understand your table; that is, you mean nitrogen regained as nitrite nitrogen, is that what you want to know? Q. I don’t know, the chemist asked me to ask the question, I don't know what he is talking about, | am not sure—nitrite nitrogen, that is what he wanted, A. The exact divisor we would have to divide the 80 in the 40, the exact divisor would [—] [46/14th]—about 3.4— well, for practical purposes we might divide say, by four, that would give it 20 parts, 20 parts of nitrite nitrogen in case of 80, ves, and 10 parts of nitrite nitrogen in case of the 40, Q. Are you familiar with the market prices or the refation between the market prices of patent flour and straight flour and clear, so as to be able to tell us whether or not one is higher than the other? A. The patent flour commands a premium over clear flour, varying sometimes, sometimes as much as seventy-five cents a barrel. Q. And that is over clear flour? A. That is over clear. Q. How about straight? 194. A. Well, it varies again, sometimes 20 and sometimes 30 cents a barrel more. Q. That is, the highest price, then, is patent. and the next is straight and the next is clear, am T right about that? A. Yes. Q. Now, as to the effect upon the general appearance and the effect of bleaching by the Alsop process upon the general appearance of straight flour, does it or does it net make it look to ordinary observation, like a patent flour, especially as respects color? A. Yes, sir, the straight flour can be made to resemble pat- 6—3533-3534 RTs 82 LEXINGTON MILL AND ELEVATOR CO. VS, U. S. OF A. ent by bleaching, and, in fact, the bleaching wipes out all distinctions of grade as determined by color. Mr. Elliott: T object to the last part of the witness’ answer, it is purely volunteer, and move to strike it out. The court overruled the motion to strike out: to which rul- ing claimant then and there duly excepted. Q. In the absence of bleaching is the color of wheat flour an index to its quality and kind? A. It was before bleaching was introduced an index of the quality and kind of flour, Q. What effect does the Alsop bleaching process have up- on color as an index of the kind and quality and value? A. Destroys the index, Q. How so? A. Because it makes all grades of the same color, Q. And how with respect to flour as vou consider different kinds of wheat, new or old wheat, hard and soft? A. Well, they can all be reduced to uniform color, The Court: Speak up, Doctor. A. They can all be reduced to a uniform color. Q. By this Alsop bleaching process? A. Yes, sir. Q). This morning vou expressed the opinion that bleached flour, when bleached by this Alsop process, would not improve by being stored and by lapse of time as would the unbleached flour. Will vou give us the reasons for that opinion, tell us why that is true? A. On account of the injurious effect on the diastase or the enzymes of the wheat. Of course T could conceive ai case where the flour might be bleached to such a slight: ex- 195 tent that there wasn’t enough peroxide to paralyze all of the enzymes, but usually there is sufficient for that, and if the enzymes are put out of business, why, there can- not be any improvement, Q. The improvement, then, in case of color, aging, is due to enzymotie action? A. T think it is. The Court: Anything further, Mr. Butler, in chief? Mr. Butler: That is all T can think of, Your Tlonor. Cross- Examination By Mr. Elliott. Q. Professor Shepard, | will ask vou first what particuku line you qualify as an expert to testify in this case? A. Why, 1 have qualified as an agricultural chemist to do digestion work. Q. Solely as an agricultural chemist? Sah RAL A Beth ati SR odie ot Se! ~>~>~"—" LEXINGTON MILL AND ELEVATOR CO. VS, U.S. OF A. 83 A. That involves, of course, the idea of this digestion work as I have explained. Q. You don't qualify as a toxicologist, or doctor of medi- cine, or anything of that kind?) A. Not at all. Q. 1 will ask you if for the purpose of your experiments you have ever gone to a mill and gotten flour bleached by the‘ Alsop process, and the same flour unbleached ? A. I have not, Q. In regard to this Exhibit No. 6 T will ask you if you know how the color of the gas that was originally in there com- pares with the color of the gas that comes from the Alsop process or the Alsop machine? A. The colors would be identical if the dilution were the same, Q. Just repeat the question, (Question read by the re- porter. ) A. IT will try the answer again. The color of the gas which I brought in is darker than it would be as it issues from the generator of the Alsop machine, Q. Did you ever see gas coming from the Alsop machine? A. I have. Q. Have you ever seen its color? A. 1 have. Q. You detected it? A. L could detect the color and T could detect the— 196. You say that vou have seen the color of gas coming from the Alsop machine? A. Yes, sir, Q. What color was it? A. It isa very faint, a very faint shade of this same brown color. Q. Where was that? A. That was in the mill at Minneapolis, Q. What mill? A. In the Washburn-Dean mill and also in the mill at Brookings. By the Court: Q. Dakota? A. Dakota, ves, sir. by Mr. Elliott: Q. Now, you have testified that peroxide of nitrogen gas produces—has certain properties, that is corrosive and that is difficult to breathe, suffocating to breathe, and so forth. Have you ever smelled the gas from the Alsop machine? A. I have. Q. Did you experience any suffocating effects? A. Why, an irritating effect in that dilution. Q. You did? A. Yes, sir. Q. You dew t understand, however, do you, that the buyers 84 LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A. of flour that has been bleached by the Alsop process have to inhale this peroxide gas, do you? A. No, not at all. @. And your testimony has been that assuming that the peroxide gas is the clement which bleaches flour, that it is changed in the flour to something else, isn’t it? A. With the lapse of time. Q. Then if it be the fact that peroxide of nitrogen gas is poisonous, that has no necessary bear ng, has it, on the prop- erty of any compound that may be found in the flour bleached by the gas, has it? A. Why, in that the nitrous acid derived from it is there, Q. But that assumes that nitrous acid is poisonous, but I say the fact that the gas is poisonous does not necessarily imply that the product you found in flour is poisonous, if it is changed, doesn't it? A. But it is not always changed; perhaps, we do not understand each other exactly, Q. Well, T will ask it plain. A. T make this statement— Q. Let me put the question to vou. You have testified 197 ~~ that the peroxide gas comes into the flour and is chang- ed into nitrous and nitric acid? A. Yes, sir, Q. Those are both distinct chemical substances from per- oxide of nitrogen? A. Yes, sir. Q. Now, irrespective of whether either of those substances are poisonous, T will ask vou isn’t it a faet, or is it, [T will ask vou if the fact that peroxide of nitrogen is poisonous neces- sarily implies that the products it forms in flour is poisonous, if it is changed? A. Why, it does not imply that. Q. Now, that is all T want to know. You have said that those things were poisonous? A. Yes, sir; [T claim— Q. But what I am getting at— Mr. Butler: You interrupted the witness and | hope that he may be permitted to conclude his answer. The Court: Tt is for the witness to sav whether he has answered it completely or not, I domt know. iv Mr. Elliott: Q. What T am trving to merely bring out is this, Profess- or Shepard. You have stated that certain properties are possessed of peroxide of nitrogen gas? A. Yes. Q. And Tam simply saving that whatever these properties may be, it does not necessarily follow that they are possessed by the different compounds in the flour, does it? A. Theoretically it does not, but as a matter of fact, it does follow, Mr. Elliott. Q. All right. We'll get to that later, A. Yes, all right. ; x a sf % a A 3 a q # i 4 hen J LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A. 85 Q. But as a mere question of theory it does not follow at all, does it? A. Not at all. Q). In other words, to illustrate, chlorine is a poisonous and corrosive gas, isn’t it? A Yes, sir. (). It does not necessarily follow that table salt is poisonous, does it?) A. Not at all. Q. And that is a compound? A. That is a compound of chlorine, Q. From chlorine gas, isn't it? A. Yes, sir. Q. And earbolic acid gas is poisonous when inhaled, isn't it? A. Yes, sir. Q. It does not necessarily follow that the compounds of that gas are poisonous, does it? A. Not at all, 198 Q. Asa matter of fact they are not poisonous? A. No, | have admitted all that, Mr. Elliott; T have admitted that theoretically it does not follow, and you name cases Where it does not, to prove my answer correct. Q. Now, you have testified about this gas generated by the Alsop machine corroding the pipes. Where did you see that? A. Well, T have seen that in specimens of pipe that have been taken from the mills. (). Who got the specimens? A. Well, TL saw those in North Dakota; T couldn't tell vou just who brought those in; and [ have seen pipes that came out of our mill at home that were corroded, and se on, Q. Well, did vou get those pipes out of the mill? A. Oh, not at all, it was just casual, (). Have vou seen a pipe ina mill that was corroded? A. Sir? Q. Have vou seen any pipe in a mill employing the Alsop process that was corroded? A. That is vou mean where T went and took the pipe out and handled it, and all that? Q. Did vou see the pipe and see that it was corroded? A. Well, I couldn't see where T have visited the mills, the pipes were in use, vou coulda’t see because the corrosion is on the inside; there is only [—] way,—to take the pipe ont and examine it. (Q). You never did that? A. That PT did not do, no, sir. Q. As a matter of fact, if you pass ordinary atmospheric air through that pipe it would corrode it, wouldm't it, in time? A. Well, it would be too long for vou and me to wait, Mr. Elliott. Q. You don’t know how long it takes this Alsop process gas to corrode it, do you? A. Why, T have not taken a pipe and put it im and: fol 86 LEXINGTON MILL AND ELEVATOR CO. YS. U. §. OF A. lowed it through, but of course I am obliged to rely for my knowledge of that on the statements of those who use them. Q. It is not in evidence here, I am asking you if you know how long a pipe may be used with the Alsop machine without corroding? A. Well, it will depend on the thickness of that pipe; you can make a pipe thin enough so that it won't last a 199 month with the Alsop process, Q. You don’t know that, though, do you, you have never seen it? A. Why, I have not made that measurement, no, but 1 ‘know it. Q. You don’t know how long a pipe may be used with the Alsop machine without corroding, do you; you don't know if it may be used five years or ten years, or twenty years, do you? A. Well, I know that it cannot be used any such length of time. Q. Well, how do you know it? A. I know it because I know the action of chemicals on iron and on the different metals. Q. Yes, sir, you know what the action of gas on iron is, don’t you? A. Yes, sir. Q. There is pressure in the air? ORP OPED 106 LEXINGTON MILL AND ELEVATOR CO. VS. U.S. OF A. It was white, was it? A. It whitened it. Whiter than it was before? Whiter than it was before. Then I suppose you baked that into bread, that flour? Oh, it was removed .then from the bleacher and stored and finally baked into bread, yes sir. 222 2. How much bread did that make, approximately, one oaf? A. Oh, I didn’t use it all. We only take about 300 grams, Oh, it takes about 300 grams to make a loaf of bread, about a pound loaf, and we have certain rules that we follow, so that left me 200 other grams for other purposes, Q. Well, before you baked it into bread, did you test the flour for nitrites? A. Yes, sir. Q. How much did it contain? A. I testified to that, Mr. Elliott. It is on record. Now do you want to confine your question to any specific amount, Mr. Elliott; do you wish to confine your question to any specific amount—18 parts? Q. The flour you bleached with the 18 parts? A. All right, sir. Where I used 18 parts of peroxide per million, I was able to find in the fluur 1.98 parts per millions. Q. Is that nitrogen nitrites? A. That is nitrogen peroxide; I don’t use that expression nitrogen as nitrites, it is all nitrogen peroxide, everything. Q Just tell me—put it in terms of nitrite nitrogen, would you figure it higher or lower than you have? A. Oh, it would be very much lower, about four times lower, that is, if I should call that all nitrite nitrogen, which [—] is not by any manner of means, but if we call it an equivalent to it, I would have to divide my 18 by 4. By Mr. Butler: Q. Divide the 1.98 by 4? A. I would have to do better than that, because now, see here, Mr. Elliott, when this peroxide goes into water, half of your nitrogen runs right through, and the next change, half is lost again, so we have only Y of this, and put in that 14, so that if I should take 14 of 18, that would give me about four, and then if I should better it by the relative amount of nitrogen as compared with nitrogen peroxide, I better it by four; that would make me about one part again of nitrite nitrogen per million that I actually put in, that is the truth. Mr. Butler: How much taken out? LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 107 Q. 1 am asking for what you found in the flour, not what you put in; what did you find in the flour? 223 A. You could divide the figures there about by 16. Q. By 16? A. Yes, sir. By Mr. Butler: Q. That is 1.98, divided by 16. A. Yes, that is what it would be; that would go one and in thirty-eight—about 12/100 of nitrite of nitrogen, that I actually found in that flour, and then I found in the bread about two parts of nitrite nitrogen, if you want to figure it. Q. You took a certain proportion of this flour and made bread from it, did you? A. Yes, sir. Q. And you took a like proportion of the unbleached flour and made bread from it, I assume? A. Yes, sir. Q. Now tell us how you performed that digestion experi- ment, first give us one of them, using this 18 parts? A. Well, I run them altogether, for instance, these that I have gotten here, that I brought you, I ran them altogether, I ran them in the series. Q. What artificial digesting substance did you use I mean? A. I used a solution of pepsin, the active principle of gas- tric juice, with 2/10 per cent hydrochloric acid solution, that is a very close approximation to the digestive juice of the stomach, and I placed a large quantity of that in a beaker, I had a large beaker, one that would hold about two or three liters, and these weighed quantities of bread. Q. Now first tell us how much digestive fluid you had? A. Oh, I had worlds of that. Q. How much? A. Worlds of it, more than I needed, probably a couple of liters, Q. Well, I mean I want a definite experiment with figures now, we have got thus far, and you say you made a digestive solution, and you put these tubes containing the bread in it; I want you to describe it. A. I tell you, Mr. Elliott, I believe you better let me tell you, how I made that experiment, because I can see from the way that you start to asking questions that you don’t know what I did nor you don’t know how I made it. 224 Q. I don’t, I want you to tell me? A. Alj right, I will tell you then, and I will tell you in full. First, I had a large beaker that will hold three or four times as much as this one. Q. That will be about a gallon? A. Oh no. Q. Oh, no, half a gallon? A. Yes, about a couple of quarts; then I filled it like this, we'll say, with the digestive fluid, but it doesn’t matter how 108 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. much, with this fluid; I might have an opinion of it, if I wanted to, but that does not make any difference, you know. Then I took tubes about the size of this, that is about that round, about, well—3/4 of an inch in diameter, and 8 inches long, and I cut the bottoms off the tubes. I tied a fine muslin strainer right over the bottom of the tubes, I grouped those tubes and I put a certain series of these tubes, ten or a dozen of them, these were all run in duplicate, and the figures that I have given here are means, in one single trial, you know, and then you can imagine to yourself a group of these two, bound around with elastic bands, so that they were all the same, the same amount of bread from each sample, of course, was put in, like that. Then this was set right down like this, until the digestive fluid rose two or three inches above the sample of bread that was in there. Now it was kept about 40 degrees centigrade; that is about’ the temperature of the stomach where the best digestion occurs, and it was left there until the digestion had gone on its way a long time. Now you see what happened. The bread was right down here on your little muslin strainer. As the digestive juices attacked it the solution became heavier; and that heavier solution just filtered and dropped right down- into the large vessel out side; 8o it kept in contact with a fresh amount of solution all the while; and then when the digestion—I did not allow it to go to completion, mind you, if I had, I would not have had anything to inform my self, because my bread would have digested completely—so I had to stop before that was eom- pletely digested. Well, as soon as it was completely digested I could just take this all up at one time, so that every one got the same treatment absolutely, the same all the 225 way through, and then by setting this down once or twice in cold water, fresh water, why, we washed the digestive solution all off from them, so that there was nothing left but the undigested residue. Then we found—that is, I determined the nitrogen, although, I presume you would not be interested in that. Q. Yes, I am very much interested in that? A. Are you? Q. Yes, sir. A. You want me to tell you how I got the nitrogen? Q. No, just tell me how you determined the rate of diges- tion. A. Oh yes, I see. Now then it is evident, that if our per- oxide is making any difference with that bread with our one sample that didn’t have any in, it ought to go a little faster than the other. Q. Ought to digest faster? A. Ought to digest faster, and there ought *o be less left in that set of tubes. 4 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 109 By the Court: Q. Less residue? A. Less residue, yes sir, less residue, and where the others have been affected, there would be residue left according to the amount of disturbance that was brought about by your per- oxide. Now then having determined beforehand exactly how much protein I put into each tube, I then analyzed those residues once more, and determined how much protein I had left, and that gave me exact data for comparison. Q. In other words, you determined the nitrogen compounds of the residue is that it? A. Yes, and that is the way I determined it. At this point the further hearing of this cause was adjourned until tomorrow, Friday, June 3, 1910, at 10 o’clock a, m. 226 Kansas City, Missouri, Friday, June 3, 1910. Court met pursuant to adjournment, and the further hearing of this cause was resumed as follows, to-wit: Morning Session. James H,. Shepard, in continuation of his Cross-examination further testified as follows: By Mr. Elliott: Q. Professor Shepard, I will ask you what you would set ° as the limit of experimental error in making nitrogen deter- minations of flour? A. We consider a determination satisfactory when we get a variation of about one to two-hundredths of one per cent. (). Now will you tell me, if using one gram of flour, I think that is what you used, wasn’t it, one, in the digestion work—how much was it you used? A. We usually use one gram. Q. Is it one gram? A. Yes. Q. And assuming the flour contained as a ee of bleach- ing two parts per million of nitrite nitrogen, I will ask you if you could possibly determine any loss of what you have re- ferred to as albuminoid nitrogen, and again of amid-nitrogen? A. Now, just repeat the first part—could I determine— Q. In other words, would not all of your figures be within the limits of experimental error? A. Clearly so. Q. I have not your exact figures in mind, but I will ask vou if it is not true that the figures you gave yesterday were not within the limits of experimental error? A. They are within the limits of experimental error. Q. Now, Professor, I will ask you if nitrous acid is a vol- atile gas? 110 LEXINGTON MILL AND ELEVATOR CO. YS. U. 8. OF A. A. We are only acquainted with nitrous acid in liquid dilute form, that is, I mean in water solutions, the prob- 227 ~— abilities are it is a gaseous compound and volatile. Q. Well, let me ask you, do you say there is such a thing as nitrous acid gas? A. Yes. Q. And isn’t it the fact that it is so volatile you can not possibly isolate it? A. Yes, sir, that is true, Q. Now, that would mean that it readily volatilizes at or- dinary room temperature, doesn’t it? A. Yes, sir, it does. Q. Wouldn’t it be reasonable then, that it would volatilize in a bake oven? . A. Yes, sir, it is constantly going outside of the bake oven or into a gas. Q. Now I will ask you if you have any experience with baking bread made from bleached flour? A. Yes, sir, Q. To determine if the bread had any nitrites? A. I have, Q. Have you made any experiments by making the dough of bread and making nitrite determinations on the dough to see if the yeast plant had destroyed the nitrites? A. No, I have not made those experiments. Q. What would be your opinion? A. My opinion is from results that I have obtained on the bread, that under certain circumstances that the yeast con- sumes the nitrite material or the nitrous acid, probably, after it has first passed into a nitrate. Q. Now isn’t it true that not all of the gas that goes into this agitator, gets into the flour. You testified, you could smell it I believe, in the mill. A. Yes, Q. That escapes from the agitator, does it not. A. That had escaped from the agitator. Q. 1 want to ask you one other question in reference to your digestibility experiments. Did you not in one case show that the bleached flour digested more readily than the un- bleached flour. A. I did. Q. I think you said something as to bleached flour damag- ing the looks of it, I mean, I just have a note—did you make such a statement as that, do you recall? A. I do not recall making that statement. Q. Well, I won’t ask you about that. I will ask you, pro- fessor, if it is not true, that a straight flour can be 228 made to resemble a patent flour without bleaching and irrespective of bleaching by the ordinary processes of milling? A. I don’t think so. Q. Are you prepared to dispute that proposition if I say it can? A. I should just simply probably say that it could not, and let it go at that. / LEXINGTON MILL AND ELEVATOR CO. VS. U. 3. OF A. 111 Q. Well, I mean, is your knowledge of the milling art suffi- cient to justify you in disputing the proposition that a straight flour by the ordinary milling processes can be made to re- semble a patent flour? A. Well, I say this, that I never have seen a straight flour that resembled a patent flour. Q. Very good, but that is not the question. My proposition is that irrespective of bleaching, the straight flour by ordi- nary milling processes can bé given a color the same or even superior, I will put it, to patent flour. Now are you prepared to dispute that? A. Not as a general rule can it be done. It is possible, though that some such highly refined methods as Mr. Smith was telling us of, that the resemblance might be made very close, but the ordinary mill can’t do it, Mr. Elliott. Q. You say it cannot be done? A. Not an ordinary mill working the way the ordinary mills do, Q. I believe you testified that all grades of flour can be bleached and brought to one uniform color, did you not? A. IL believe that that is very nearly a correct statement ; I don’t remember, I do not recall just exactly under what circumstances, Q. Well, I will ask you is that your judgment? A. With all grades, no. I would not say that; the red dog, for instance, could not be brought to resemble the other grades. Q. Well, cut out the red dog? A. Yes, take for instance, a clear— Q. You don’t understand red dog to be flour, do you, as we ordinarily use the term? A. Well, it is one grade of flour. Q. All right, we'll cut that out now. A. Yes, A clear, properly made, can be bleached so that it will resemble a patent, Mr. Elliott. ©. No, that was not the question, can they all be—can the bleaching bring them all to a uniform color? A. Yes, take the straight, the patent and the clear they can. Q. And if you bleach them all alike, they will all be brought to uniform color? A. 1 don’t say that, Mr. Elliott. Q. Well, if you bleach them any way you like, they all can be brought to uniform color? A. If you bleach them properly, that is, if you bleach them with that object in view, you can bring them to the same color. Q. And you say ‘hat, take any flour, from any wheat, as 112 LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A. many grades as you like, that after bleaching them, will not all possess, there will not be the same relative difference be- rie those grades after bleaching as there was before bleach- ng? A. Yes with that particular variety of wheat, that is true. Q. There will be the same relative difference, or do you mean they will all be the same uniform color? A. I mean they can all be made to resemble one another. Q. Well, let me put this question to you. Suppose they are all bleached in the same way, will [they] be the same relative difference between those grades after bleaching as there was - before bleaching? A. Do you mean by the same way, Mr. Elliott? Q. Well, bleach your flour the same as you bleach the patent flour? A. You mean the same amount of bleaching? Q. Just run it through the machine the same as you did the other? A. I think there might be some slight difference then. Q. That is, there might be the same relative difference be- tween the grades after the bleaching as there was before the bleaching? A. No, provided—there would not be that relative dif- ference, provided the amount of bleaching re-agent was suffi- cient to satisfy the absorptive power of the flour, then they would all be alike. Q. Professor, if you will just pay attention to the way I put my question. It involves this proposition, that they were all run through the—given the bleaching process in the same way run through the machines the same length of time and all conditions being equal? A. T understood your question, Mr. Elliott, but you have not told me now how much of the bleaching re-agent would 230 = apply. Q. It doesn’t make any difference, professor, my ques- tion is, take any amount you please. Well, I will put it this way, take a mill that is bleaching its flour in the ordinary way, that is bleaching it, and it bleaches all the grades it makes, including the low grade red dog. Now I ask you—and they wre all treated in the same machine in the same way,—will there be the same relative difference after the bleaching as there was before the bleaching, as to those grades? A. I will answer you as carefully as I can. If the natural run of the mill furnishes enough to satisfy the absorption of the flour barring say red dog, they might be brought-—there will not be but relative difference. If, on the other hand, only a very slight quantity of the bleaching re-agent employed there will still be difference, Mr. Elliott. LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 113 Q. I object to the witness’s answer as not responsive, and move it be stricken out. My question did not say anything about the absorptive—whether there was enough gas for the flour to absorb or anything about it. &. That is what I was objecting to, Mr. Elliott,- you don’t give me a rational base. @ I am giving you all that I possess, Prof. Shepard; I am taking an ordinary mill, some mill, in this city, we'll say that is bleaching its flour, go there at any time of the day or any time and any day of the week, and go into that mill and let it bleach all the grades of flour that it is making, excluding this low grade, I ask you after that bleaching—now mind you, it does not change the bleaching in any way, after that bleach- ing, will the different grades, will there be the same relative difference between those grades as there was before the bleach- ing, or do you know that? A. I will answer your question. Q. Well, what is your answer? A. My answer is this, running as they do ordinarily do, the differences will not exist after bleaching. Q. All right, now I will ask you if you have ever tried to bleach flour with nitrous acid gas or nitrous acid will do, bleaching flour? A. I never have tried pure nitrous acid. Do you know if nitrous acid will bleach flour? You mean nitrous acid, not the peroxide, of course? . No, the nitrous acid? A. Nitrous acid—I think it is conceeded that it will. q. That the nitrous acid— A. Yes. Q. Will bleach flour? A. Yes, sir. Q. Will nitric acid bleach flour? A. I think it will, yes, sir. Q. Prof.Shepard, if I put nitric acid on flour, the chances, ien’t it almost certain it would burn it up? A. What strength acid would you pour on? Q. Take pure nitric acid. A. Why, I think, why, I know that it would not burn it up, Mr. Elliott, but it would destroy it as flour. Q. Well, take commercial nitric acid, 36 per cent, isn’t it, something of that kind, you say pour that on flour to make it white? A. No, I don’t say anything of the kind. Q. Well, I said nitric acid? A. Yes. Q. Now those are the only two nitric acids as such that there are? 8—3533-3534 114 _ LEXINGTON MILL AND ELEVATOR OO. VS. U. 8. OF A. A. Yes, but you know enough of chemistry, Mr. Elliott, to know that what that acid will do to that flour depends on the dilution of that acid, Q. No, excuse me, you must not put that on me, I don’t know any such thing? A, Well, I do. Q. Well, all right. Did you ever see nitric acid as bleach for flour? A. No, I never have tried it, but I have tried the two togeth- er, and they do it fine. Q. Then you get peroxide of nitrogen don’t you? A. What say? Q. You had peroxide of nitrogen? A. Yes, sir, to start with. Q. Now I will ask you Prof. Shepard, if heretofore you have not given testimony in a case in which you deal with the fact that nitrous acid would inhibit digestion as applied to flour? ' A. Yes, sir. Q. And I will ask you if you did not publish the re- 232 = sults of your experiments in a paper? A. Yes, sir. Q. I want to hand you-a copy of the Food Law Bulletin, dated Chicago, August 12, 1908, which I will ask the stenogra- pher to mark as Claimant’s Exhibit 201. Calling your atten- tion to that exhibit, will you kindly say do you recognize that as your article? A. Yes, sir, I recognize it. Q. And I will ask you further if you can state that that is not the article which by common consent we used as the basis of your cross-examination in Fargo, at the trial referred to? A. Yes, sir, that is the one. Q. And I will ask you further if with the exception of one or two typographical errors, you did not state that this cor- rectly reported your investigations, if you remember? Mr. Butler: Just a moment, I don’t know what the purpose of this is, whether it is to offer it in evidence or not. If so, the line of inquiry is immaterial. Mr. Smith: Suppose, Your Honor, it is laying the foundation for subsequent proof. Mr. Butler: Is it offered in evidence? Mr. Smith: Have a little patience, I don’t think it shows anything improper. Mr. Butler: I object to the cross-examination concerning what is in a writing not offered in evidence, and when counsel expressly declines to say whether or not he will offer it in evi- . dence, LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 115 The Court: Mr. Elliott, you ought to say yes or no to that. Mr. Elliott: I have not asked the witness a thing about the contents of this. I am not going to ask him. The Court: Well, go on a little bit, no use examining him about some paper unless it is to go in evidence. Mr. Elliott: I am not going to examine him about it. (Question read by the reporter.) The Court: He may answer that, we will see what becomes of it now. A. I answer that, yes. 233. Q. Now I want to ask you if in that case in Fargo, in which you testified, if it is not within your knowledge that the court made one of which I am going to read to you, as a finding of fact? Mr. Butler: Just wait a moment before it is read—the ques- tion so far stated is this, is it not within your knowledge that the court at Fargo, made a finding of fact which is as follows: The Court: I understand, Mr. Butler. Mr. Butler: Now I am not unwilling at the proper time and place to try the Fargo case, which was a suit in equity, as it is reported, and your Honor knows all about it. The Court: I know the Dakota case. Mr. Butler: But he has just offered to talk about findings of fact there, and we object to the statement of any claimed substance of any finding under the form of asking a question. The Court: Objection sustained. To which ruling claimant then and there duly excepted. Mr. Elliott: I would like to note an exception to that ruling. Now I will ask you, Prof. Shepard, if you did not tes tify that bleaching impairs or destroys or something of that kind, the odor of ‘flour? A. I did. Q And would you be able to tell by the sense of smell that the flour has been bleached? A. When it has been freshly bleached I could but after a sufficient time had elapsed I could not. Q. What do you mean by sufficient time? A. Oh, anywhere from two days to a week, depending on how the flour was stored. Q. And you could not, after that time you could not tell whether it has been bleached or not, by the sense of smell? A. No, sir. 116 LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A. Q._ I hand you a package of flour marked “Defendant’s Ex- hibit 202” and ask you to smell of the flour therein, and state if you can tell by the sense of smell if it has been bleached or not? 234 Mr. Butler: We will object to the experiment, test. If we begin that we will begin to enter upon a field it seems to me thai it will never end. The Court: I tell you, Mr. Butler, I have been thinking a little, but not consecutively about this matter of experiments. I assume that at some convenient time to counsel they will cite authorities or an argument will be made upon that ques- tion. Without reference to whether this will be a precedent or not, I see no objection to a very limited number of these, but before I go into this experimental field everything, cooking bread, and a whole lot of these things, I will want to be fur- ther advised than I am now to enable me to pass on this ques- tion. : Witness: I will state, Mr. Elliott, that I have such a cold this morning that I am physically incapacitated, could not, I am in no condition to make a test, but I tell you what I will do, I can do no better, I show my good will even if I felt— Q. That is fair. A. I can’t tell you. By Mr. Smith: Q. What you say? A. I can’t tell, The Court: I will say that Mr. Elliott, so there may be nothing regarded at all decisive or a precedent, before either side enters into any experiments I would like to be advised by counsel for both sides—I suppose we do not stop now, and some time or other we must stop and consider it. Mr. Elliott: I understand your Honor to mean, that before we introduce any experiments, or make any, you wish us to consult you and with other counsel? The Court: %oth sides. I have no preconceived notions about it, unless it might be I could say that both sides would be swamped if we are going to do a lot of cooking school or chemical laboratory, take a bite of bread out of every con- ceivable kind of flour, I don’t know what kind of a fix 235 we will be in when we get through, I don’t know about these things, I don’t know to what extent you are going into it. Mr. Elliott: That is all as far as this is concerned. LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 117 The Court: I am neither for you or against you, Mr. Smith, I don’t know about that. Mr. Butler: I understand the rule to be that the witness may not be required to enter upon physical tests. (At this point the jury was excused, and a lengthy argument and colloquy was had between counsel and the court as to permitting the witness to make certain tests and experiments in the presence of the court and jury.) Whereupon the jury returned to the jury box, and the ex- amination proceeded as follows: The Court: I have no objection te these few exhibits, I am not sustaining the objection to Mr. Elliott’s first question. Mr. Smith: Go right ahead with it. The Court: But of course, you understand what we have been at here. The objection to this particular exhibit 202 will be over- ruled. He has already answered it. Mr. Smith: Yes, let it go at that. The Court: And with the right to recall the witness, per- haps. Mr. Smith: Yes. The Court: Or rather, I assume that these witnesses want to get away as soon as they can; I don’t know anything about this gentleman. I will decide this question definitely by to- morrow morning and reach a conclusion by which I will stand. Mr. Elliott: I will finish the cross-examination. 236 Q There was just one question I [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0194%3A1. Public record. Not legal advice.