Transcript of Record — United States v. Lexington Mill & Elevator Co.
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LEXINGTON MILL AND ELEVATOR ©O. VS. U. 8. OF A. 1075
Morning Session.
Kansas City, Missouri, Tuesday, June 21, 1910.
Court met pursuant to adjournment and the further hear-
ing of this cause was resumed as follows:
Dr. John Wesener, in continuation of his cross-examination,
further testified as follows:
By Mr. Butler:
Q. How many samples of unbleached flour have you analyz-
ed since bleaching commenced by the Alsop process?
A. I couldn’t say the exact number; I would say between
one and three thousand.
Q. One to three thousand?
A. Yes, in round numbers.
Q. Of unbleached flour?
A. Unbleached flour.
Q. Would three thousand be conservative, or will we
make it two? A. Well, two would be conservative.
Q. What is the expense of having a sample of flour
.~ 1461 examined by the Columbus Laboratory?
Judge Scarritt: We object to that as immaterial and
irrelevant.
The Court: You may answer, not go into the details.
To which ruling of the court claimant then and there duly
excepted.
Q. No, it is either one dollar or ten or forty or a hundred;
one word will answer.
A. With reference to the value of the flour as flour, you
mean.
Q. I wanted to find out what you charge for examining
each sample of thefifteen thousand samples of bleached flour
you examined since bleaching commenced.
Judge Scarritt: I renew the objection.
The Court: He may answer.
To which ruling of the court claimant then and there duly
excepted.
A. Wecharge two dollars and a half a sample.
Q. Speak a little louder?
A. Two dollars and a half a sample.
Q. In your analysis of the patent flour how much ash do
you find?
_A. That depends on—
1076 LEXINGTON MILL AND ELEVATOR OO. VS. U. S. OF A.
Q. - In the soft wheats of the South, the soft winter wheats
of Missouri, Kentucky, Southern Illinois, and that territory,
the whitest flour?
A. Well, our standard is .35 per cent, our standard.
Q. .35 of one cent is what you find? A. Yes.
Q. You have established a patent standard?
A. Which we change every year.
Q. Oh, of course.
Phas We change every year when the new wheat crop comes
Q. In the spring wheats, the spring hard wheats, what
1462 is your standard ash for patent flour?
A. Well, from .42 to .45.
Q. Yes, and the winter hard?
A. From .40 to about .42.
Q. This flour that was seized did you examine—did you
make an ash determination? A. Yes.
Q. How much did you get? A. .46
Q. .46. Now, assume that Miss Wessling and the others
were right and got .57, is it a patent flour?
A. Well, it is not a high grade patent, according to our
own standard, it may be a patent the way that method turns
it out.
Q. That is, if it is true that everything is a patent which
a miller calls a patent, then this seized flour is a patent?
A. Well, of course, the way you use the word “patent” it
is absolutely meaningless, absolutely meaningless.
Q. Well, aceording to the standard as fixed by your own
best judgment, isn’t it?
A. We say that a flour that is properly cleaned and will
mill, and nicely bolted, and so on, should have only so much
ash froin a given weight.
By the Court:
Q. Let me ask you, do you mean “patent” is meaningless
or indefinite?
A. I mean it is meaningless and also indefinite, and I can
explain that to you fully that is, if you wish.
The Court: Well, you have gone over that; I didn’t think
you meant to use the word “meaningless”.
A. Meaningless because it refers to the patented roller Bys-
The Court: That is forty odd years old.
By Mr. Butler: -
Q. In the Dixie Miller of October, 1907, at page 36, you
are reported to have said in substance as follows: “Now,
should the miller be prevented from bleaching flour when he
LEXINGTON MILL AND ELEVATOR 00. V8. U. 8. OF A.- 1077
can give the consumer and the baker and everyone a better
fiour, improve the flour, age it rapidly, standardize it better,
it contains more nutriments, and there is more gluten
1463 present, and makes a larger loaf, increases absorption.”
Did you so state in substance and effect?
A. I don’t know whether I stated that; I may have state-
ed that.
Q. Those are your views?
A. Those are my views; those are my views; yes, sir.
Q. Im the Dixie Miller of October, 1907, at page 36 you
are reported to have said: “We have examined the gluten very
minutely. We have never found any nitrite in combination
with the gluten. We have never found any variation in the
gluten, and we have never found any variation as yet in the
oil; the only change that we have found is the coloring matter
of the flour.” Did you so state?
[Q] 1 don’t know whether I did or not, but that would be
true.
Q. Those are your views? A. Yes, sir.
Q. The American Miller of 1909, at page 885, reports you
as saying: “Not all of the flour contained in the grain can be
in the form of middlings of such a character that they can be
sufficiently purified to make a better grade of flour. The re-
maining portion is mixed with fine fragments of bran, and even
the germ, which is the embryo of the kernel. This por-
tion of the flour is generally named clear grade flour; it is
darker in color than the patent flour, and when separated in
this way is inferior for bread making purposes because of the
impurities it contains. When the clear flour and the patent
flour are united in one, they constitute a high grade flour much
more superior to the flour made by the old stone mill process,
has more of everything, its same general character but from
a good and economic character the clear flour is superior to
the patent flour because it contains more protein, more of the
fat and less of the starch. The same is true of the straight
grade flour for it contains the excess of these ingredients more
than in clear, and at the same time objectionable qualities of
the clear are largely removed because the impurities more il-
uted; except as regards color, more beneficial than injurious.”
Did you so state?
1464 A. In what paper?
Q. The American Miller of 1909, page 885?
A. I don’t know anything about that, but I did state it in
the Industrial Journal of Engineering and Chemistry published
by the American Chemical Society; it originally was in that
Scientific Journal.
Q. Those are your views? A. They are.
1078 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
Q. The Dixie Miller of October, 1907, at page 736, reports
you as having stated as follows: “There cannot be any decep-
tion practiced taking the law as it reads unless you substitute
an inferior for a superior article. I will just explain to you
that the reverse is true, that you are substituting a superior
article for an inferior article. The old-fashioned patent flour
was the white portion of the wheat. The starchy portion that
did uot contain the food value that is contained in the germ,
colored middlings or the more colored middlings, it does not
contain the food value or the strength. Now, by grinding
up these middlings and purifying them and simply taking out
the color, you are making a better flour than the old-fashioned
patent, better for the baker, better for the miller, better for the
consumer.” Did you so state?
A. I don’t know whether I said that in that particular
publication but those views are mine.
Q. Those views are yours?
A. I approve of them. People are getting better flour and
cheaper flour.
Q. I am asking if these are your views.
Judge Scarritt: Let him-explain if he wants to explain.
Mr. Butler: He explained yesterday that he did not change
it. We will leave it that way until you get him.
Judge Scarritt: Do you desire to explain?
The Court: That is a very simple and elementary rule.
This is equivalent to asking the witness if he upon another oc-
casion stated so and so. If he admits it that ends it;
1465 if he denies it, why then they have a right to bring their
proof forward.
Judge Scarritt: Certainly.
The Court: In other words, it is a foundation for the im-
peachment. If he admits ii that ends it. If he denies it they
have a right to show they said it.
Judge Scarritt: He can explain it if it is an impeaching
question.
The Court: Yes.
By Mr. Butler (resuming) :
Q. The Dixie Miller of October, 1907, at page 736 reports
you to have said as follows: “The thing (meaning bleaching)
is either right or it is wrong; it cannot be half way. In this
particular we have never found anything wrong. We have
found that the bread was, if anything, increased in volume;
it gave a larger loaf; it increased the absorption and benefited
LEXINGTON MILL AND ELEVATOR 00. v8. U.8. OF A. 1079
the baker thereby. From a food standpoint it is better.
Why, because you put in a little bit of the second patent, a
longer patent, that is a better part of the wheat kernel, why
shouldn’t it go in? It makes you a larger loaf, makes you
more loaf and gives the consumer more for his money. There
is no reason why this should not go in provided it is equal and
superior to the patent.” Did you so state?
A. I don’t remember of making that statement in the Dixie
Miller, but that is, as a whole, is nearly correct.
Q. That expresses your views?
A. Nearly so, not entirely so. I would like to explain why
it does not entirely meet my views.
Q. There are others of a similar nature that I call to your
attention, and maybe your counsel will give you an opportunity
to explain. In the American Miller of 1909 at page 974 did you
state as follows: “The average value which in our report is
based upon the color of the flour, the character of the
1466 bread, the amount of the bread and the size of the loaf,
was a little higher for the bleached flour than the un-
bleached, because the color of the flour and the color and qual-
ity of the bread was improved.” Did you so state?
A. Well, I don’t know whether I stated; possibly my as-
sociate Professor Tullar did.
Q. Are those your views? A. They are my views.
Q. The. Dixie Miller of October, 1907, at page 736 reports
you as saying: “I know a miller in Ohio who makes a hundred
per cent patent and it analyzes a hundred per cent patent,
and he sells it for 100 per cent patent; he has a right to sell
it for 100 per cent patent because it is 100 per cent patent.”
Did you so state? A. I stated that.
Q. You stated that before the Bakers’ Association?
A. And that is absolutely true, he is doing that, but ac-
cording to your rule you call that a straight.
Q. And in the Bakers’ Helper reporting your speech, which
I have not in my hand at this moment, you state: “Hats off
to the miller who can make a 100 per cent patent that will
analyze a hundred per cent patent” didn’t you?
A. I say that to any man that will get all the flour out of
his wheat.
Q. You say that now to the jury don’t you?
A. Itisa pretty good thing for the consumer and the people;
it gives us cheaper bread.
Q. And if it has .57 of one per cent ash as the seized flour
has, you still say “Hats off to that kind of a patent”, don’t
you?
A. No, I say that miller ought to be taught to make prob-
ably a little better flour, to get out more of the impurities; it
doesn’t mean that the flour is bad.
1080 LEXINGTON MILL AND ELEVATOR CO. V8. U. 8. OF A.
Q. To convict him of misbranding would help to teach
him?
A. I don’t know what you mean by misbranding in this
case.
Judge Scarritt: We object to that.
1467 The Court sustained the objection.
Q. The Operative Miller of 1907 at page 432 reports you
as saying: “The knowledge possesssed by the average flour
jobber and user without analysis in a chemical and technical
sense is of little value. The opinion of any baker unless he has
had scientific and technical training is hardly a sound basis
for a scientific conclusion.” Did you so state?
A. I did, and that is true too about these gentlemen.
Q. So a gentleman like Mr. Freeman would not appeal to
you as having had much sense about this matter?
A. I don’t know that, I don’t know who you refer to.
Counsel for Claimant objected.
Q. The Operative Miller of 1907, at page 432 reports you
as saying: “Bakers cannot detect the slightest difference in
bleached and unbleached flour.” Did you so state?
A. I did so state, and when I addressed the National As-
sociation of Master Bakers, 250 present, and not a one there
knew they had been using bleached flour and they had been
using it for three years.
Q. So they were deceived to that extent by it, weren’t they?
A. Not at all.
Q. They didn’t know it but they were not deceived, well we
won’t go into the psychology of it. At the hearing before the
Secretary of Agriculture, the transcript furnished to me by
the Department represents you as having said as follows:
“The more I go into the subject of bleached flour the more
interesting it becomes and the more convinced I am that it
is not only a legitiniate process, not only for the miller but
also for the consumer. It is a very fine advance in the art of
milling.” Did you so state?
A. I did, and I meant every word in it too.
Q. The American Miller of 1906, at page 997, refers to an
article which you wrote for the Bakers’ Review, and represents
you as saying as follows: “He” (meaning you) states
1468 that the color is a very valuable index to the grade of
the flour when in the natural condition.” Did you so
state? A. I would have to see that.
Q. Are those your views?
A. The color is an indication of the grade and the way
that flour has been—or that wheat has been milled, but the
LEXINGTON MILL AND ELEVATOR CO. vs. U.S. OF A. 1081
color is only one factor in grading the flour—wait till I finish
my answer, and—
Q. Just a moment. A. I have not finished my answer.
Mr. Butler: I move to strike out his answer as not re-
sponsive to the question.
The Court: Yes; he has asked you the question, and I re-
peat, that this is for the purpose of impeachment. Now you
can affirm or deny. If you affirm, that ends it, the Govern-
ment has a right to bring forward witnesses.
Q. I ‘will restate the question so there will be no doubt
about it, if you will permit me, and give you time to make
your. objection,
Judge Scarritt: All right.
Q. Is this statement, to-wit, that the color is a very valu-
able index of the grade of the flour when in a natural condi-
tion, a fair representation of your views?
Mr. Scarritt: Now that is not an impeaching question;
therefore he has a right to explain what his views are.
The Court: Certainly, he was asked if he stated that before
the Secretary of Agriculture.
* Judge Scarritt: Not in this last question.
Mr. Butler: As stated in the article written for the Bakers
Review.
The Court: Of course, I was mistaken about it.
Judge Scarritt: I would suggest that he answer that ques-
tion yes if he remembers it so, or no, if he is satisfied that
it is not so, but if he is indefinite about it, he can ex-
1469 plain what his views really are.
The Court: He has asked him to state whether or not
those are his views. Now he can say they are or they are not.
Answer.
To which ruling of the court claimant then and there duly ,
excepted.
A. I would want to have what precedes that.
The Court: No, he asked you if those are your views.
A. I have to know what: precedes and what follows that; it
may be my views as far as that particular statement goes, but
that view may not be the right view when [when] what comes
before or after. :
1082 LEXINGTON MILL AND ELEVATOR OO. VS. U. S. OF A.
The Court: That answer is sufficient; that enables the Gov-
ernment now to bring the proof, he says no, that is equivalent
to a denial.
Judge Scarritt: I would like to except to that, being equiva-
lent to a denial.
The Court: What I mean by that, that will allow the Gov-
ernment to bring forward the proof that he did say that.
By Mr. Butler: (resuming)
Q. As printed on page 252 of the transcript you are repre-
sented as saying the following: “There is virtually no dif-
ference between the bread making qualities of bleached flour
and that of the unbleached flour. It is true that if you have
flour made from new wheat and you are bleaching it, you
season tha¢ flour and you put it in a condition so that it can
be put op the market immediately, whereas if it is not bleached
you are liable to have more or less trouble if you send it out
on the market because the moisture of that unbleached flour
still contains may be the cause of mustiness or mold because
the fungi and mold grow very rapidly if you give them the
right degree of moisture, whereas the aeriation process he!ps
remove some moisture, dries out the flour, it removes the
moisture to the extent of .14 of one per cent.” And the
1470 transcript represents Dr. Dunlap as asking you: “Out
of a total of how much?” And represents you as an-
swering about 12 per cent; and Dr. Dunlap is saying: “And
that is sufficient to make a difference between that flour in
which fungi would occur and one that would not produce
them?” And represents you as answering: “Not that par-
ticular evaporation, but it will continue evaporating after it
goes into the sacks.” Did you so state?
A. I think I nearly stated it in just about that way, yes.
Q. Those are your views? A. Yes.
Q. Flour treated by nitrogen peroxide gas will not con-
tinue evaporating after it goes into the sack?
A. It will continue evaporating, it will dry out but this
aeriation is not due to the peroxide of nitrogen; that is due
to good air; that takes out the moisture and immediately con-
ditions it for the market in that way which of course means
cheaper flour and cheaper bread.
Q. Larger volume and better for consumer and better for
baker?
A. Well, the larger volume might not always take piace but
it will be as large and even larger than the unbleached flour of
fresh milled wheat, it would be larger.
Q. How about corrosive sublimate, would that also destroy
the mold and fungi if you put in enough corrosive sublimate in-
to the flour? ,
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 1083
Judge Scarritt: We object to that. There is no conten-
tion that there is any corrosive sublimate in this flour; we
object to it for that reason, not a proper question on cross-ex-
amination.
The Court: He may answer.
To which ruling of the court claimant then and there duly
excepted.
A. Why, corrosive sublimate will stop the growth of mold,
but peroxide of nitrogen is excellent food for mold to grow
on, peroxide of nitrogen, it is excellent food.
Q. Would carbolic acid destroy the fungi and mold?
Same objection.
The Court: He may answer.
To which ruling of the court claimant then and there
duly excepted.
Certainly it would.
Would embalming fluid ordinarily used by undertakers?
Same objection.
The Court: He may answer.
To which ruling of the court claimant then and there duly
excepted.
A. I think it would, yes, but peroxide don’t stop molds, they
grow beautifully on that.
Q. If peroxide is used to kill the vermin, the peroxide which
is made by the Alsop process is used to kill vermin, the Mediter-
ranian moth and other things ef that sort, about a mill, you
think that vermin in four would thrive on it and would the
nitrites of it be necevsary to life?
A. Gas as made by the Alsop process would not kill any
vermin,
Q. You tried that on them, have you?
A. I have aot tried it, but I know from the strength pres-
ent—
Q. Oh, you know ‘t?
A. It would net have any effect on them.
Q. You know that? So you know that Mr. Dennison who
does use it only for the killing of vermin was not telling the
truth?
A. I did not recognize that he used it for that purpose—
Counsel for claimant objected.
The Court: That is objectionable.
>
Ph ey
¢
1084 LEXINGTON MILL AND ELEVATOR 00. VS. U. S. OF A.
Q. The American Miller, at page 886, represents you as say-
ing: “The coloring matter of the flour is the one material that
shows the great avidity for uniting of the gases which are used
in bleaching. But the coloring matter is in such case and the
amount required for the purpose of bleaching the flour is very
minute. If an excess of the gas is used it will eventually com-
bine with the other substances, primarily with the gluten, and
finally with the oil until the flour is overbleached and ruined
that action on these constitutents is sufficient to be de-
1472 tected by chemical or physical property.” Did you so
state?
A. I recognize stating that in the Industrial Chemical
Journal.
Q. But it represents your views, does it?
A. Oh yes, yes sir.
Q. That is all we care about.
A. Well, what you are reading is always a copy of my orig-
inal article which is published in the scientific paper, it is
copied by these different journals; I did not publish in the
trade journals.
Q. At Washington before the Secretary at the hearing, did
you say as represented by the-transcript at page 246 as fol-
lows: “The yeast and also the process of preparing the bread
removes the nitrites.”
Judge Scarritt: Now, if your Honor please, we object to
that and all similar questions, and to those that have gone be-
fore of the same nature, for the reason that they are not dif-
ferent from what the witness has already stated his views were.
Mr. Butler: I am glad you made that point, because I want
to remind you that this witness took his solemn oath in ques-
tions framed to elicit the answer, by Mr. Elliott, that the flour
or the bread did not contain nitrites.
Judge Scarritt: That is what he says there.
The Court: He may answer.
To which ruling of the court claimant then and there duly
excepted.
(Question read.)
A. I said that at that tine, because I.thought they were ni-
trites, but I know now they are not nitrites but act like nitrites.
Q. Did you further say on that occasion: “There is an ex-
to that particular statement in so far as once in a
while some of the bread contains minor numbers of nitrites but
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 1085
they are [infinitisemal] they can not be grasped by the hu-
1473 man mind; the highest amount we have found is .25 of
: one part per million nitrite nitrogen.” Did you so
state
A. I did not state that last, no, because I don’t understand
what you mean.
«y .25 of one part per million? A. Oh yes, .26 parts.
Q. That is .25 parts is as much as you have had?
A. At that time in 1908 about as much as I would find once
in a while in bread of this nitrite reacting material.
Q. Now, how much is in the air, that the human mind can
not grasp, what is in the bread, how much is in the air now?
A. I don't know, Dr. Marshall is the only man made those
tests.
Q. You have not tested that at Kansas City since you came
here? A. No, I have not tested that.
Q. We will come to that a little later. If there was one
part in the billion in the air, could the human mind grasp it?
A. Well, I think you could grasp that just as much as the
twenty-five ten millionth of one per cent in bread.
Q. If there was one part in the million, and you told us the
truth when you say that flour in your room for 18 hours took
a recoverable nitrite reacting material to the extent of 1.8; do
you know how many cubic feet of air would have to
through a kilogram of flour and give to it all of this nitrite
making material in 18 hours to produce that?
A. I never made that statement.
Q. No. A. I never made that statement.
Q. Yes. A. Yesterday.
Q. But what was the statement, how much in your room did
you get in 18 hours then?
A. I have not assumed that there is; I said that was 18
hours room exposure, but I never said it took up 1.8 parts in
the million.
Q. Well, you said you did find four parts per million in your
kitchen? A. I did say that, yes, sir.
1474 Q. Now by one part to the million how much air
would have to be passed through that flour?
A. You mean the same that you gave me, that problem re-
cited one billion cubic feet to one, that is one cubic foot to
one billion cubic feet.
Q. Assume a kilogram of flour, say, how much would it
take?
A. Figure as NO2, 4 parts of a kilogram of flour, and figure
that.
Q. But you did not figure it as NO2, four parts in a kilo-
gram of flour, you gave that to us in terms of nitrogen yes-
terday?
1086 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
A. But I know what you gave me.
Q. I withdraw the question then.
A. That is what I am talking about.
Q. And from my investigation, see if I can’t repeat it, if
it takes 25 cubic centimeters uf NO2 to bleach the seized flour
So as to produce 1.18 nitrite reacting material, computed as
nitrogen, then to produce four parts of nitrite nitrogen, it
would take 5514 cubic centimeters of NO2 to bleach the
kilogram of flour, a little more than twice as much as that
contained in 51. Now if there was one part to the billion in
air, would it not take to effect the bleaching of the kilogram
of that flour in your kitchen all of the nitrite producing ma-
terial in one million three hundred thousand cubic feet of -
air?
A. Well, I would say I would have to go over those figures
very carefully, but that does not at all correspond with the
problem you gave me, and I think the one you gave me yester-
day would be the one that we ought to confine it to, I would
not attempt to answer it now.
Q. And we will not wait.
A. I will take those figures though, if you want me to,
and report on them this afternoon.
Q. If the air at Kansas City is found to contain 9%4
milligrams per million cubic feet, then it will take the NO2
or equivalent in two million six hundred thousand cubic feet
of air to hold four parts per million of nitrite reacting ma-
terial computed as nitrite in a kilogram of flour, is that not
true?
A. I don’t know, I would have to study those figures.
1475 Q. Well, all right, you may study them hereafter?
A. My figures don’t correspond with yours either with
the question you gave me, but I am ready to report on that
right now if you want to.
Q. Do you think it would be possible in 18 hours time to
put—in your bed room—to put a quarter or a half a million
cubic feet of air through a kilogram of flour?
A. I should say not.
Q. No, blow tlie hotel down, wouldn’t it, there would be a
cyclone there, wouldn’t it?
A. I don’t know what would happen.
Q. In the patent, “Government’s Exhibit 1” it is stated
among other things as follows: “The second analysis of the
flour was conducted by the Henry Professor of Physics at
Princeton University, and his assistant Professor, and it was
found that while the untreated flour contained 54/1000 of a
gram of nitrogen to one gram of flour, the treated flour con-
tained 75,1000 of nitrogen to one gram of flour” In your
analysis of bleached flours did you ever get any such result?
LEXINGTON MILL AND ELEVATOR CO. vs. U. 8. OF A. 1087
A. Most certainly not.
Q. That statement can not be true chemically, can it?
A. It is not true, sir.
Q. In order to do that this flour would have to be treated
with sixty-six thousand parts of NO2, would it not, per gram?
A. I don’t know, I would have to go over that.
Q. Never figured it out, I suppose you could do that for us?
A. I could.
Q. Is the statement in this patent to the effect that it in-
creases the water true, in flour?
A. I should say not.
Q. Is it true that it increases the food value, the nutritive
value? A. No, it does not.
Q. It does not. Is it true when it says it bleaches it, that
NO2 bleaches it?
. No, I don’t think NO2 bleaches it.
Not true in that regard? A. No, sir.
Q. Is it true when it says that process bleaches it?
A. The process bleaches it, yes.
Q. Is it true when it says gases bleaches it?
The gases I think generate—
The gases generated by the flaming arc bleaches it,
does it?
A. Yes, some gas generated by the flaming arc bleaches it.
Q. Is it true when it says it bleaches it dead white?
A. Well, I don’t know what you mean by dead white.
Q. You couldn’t tell what dead white means?
A. No, I seen so many dead people, I don’t know what
dead white is.
Q. You don’t know what dead white is?
A. I knew what chalky white is; I don’t know what dead
white means, because I seen too many different colors in dead
people.
Q. I see. Did you know Mr. Alsop?
A. Never met him.
Q. You know Mr. Mitchell?
A. Yes, sir, very well.
Q. You didn’t have anything to do with preparing these
patent specifications?
A. No, I didn’t know anything about that at that time
at all.
Q. Is there any ammonia gas in air? <A. Yes, sir.
Q. Is its formula HN3?
A. If it exists as a gas it would be.
Q. Is it three times as great in volume or about that, as
the NO2 in the air?
A. I couldn’t say as to that.
1088 LEXINGTON MILL AND ELEVATOR 00. VS. U. 8. OF A. |
Q. Assume that it is then and answer this question, whether
or not these gases coming into contact with the water will
form nitrite of ammonia and nitrate of ammonia in equal
chemical parts?
That would be the immediate chemistry.
Yes, would nitrite of ammonia bleach flour?
Nitrite of ammonia?
Yes.
I have never tried it, but I don’t believe it will.
Would nitrate of ammonia bleach flour?
Never tried, no, that would not bleach it at all.
In a barrel of flour there is about 20 pounds of water,
there? A. About that, yes.
Q. Would 20 pounds of water be sufficient to cause the
reaction of the ammonia gas and the nitrogen peroxide
gas of the water to form nitrite of ammonia, would
20 pounds be enough?
A. Why, yes, 20 pounds water would be enough and the
per cents of ammonia gas and peroxide of nitrogen to form am-
monia nitrite.
Q. And satisfy all the economical power of the nitrates in
the room here or out doors? -
A. Yes, but that would not bleach flour, you know.
Q. No, that is what I thought, just what I have been look-
ing for all the time?
A. If you have nitrites in flour, as long as there is nitrite
reacting material, why the color is got out of that flour. When
I use the word “nitrite” I refer to it as nitrite reacting mate-
rial; I may misspeak myself.
Q. Nitrite of ammonia is not?
A. Nitrite of ammonia is genuine nitrite, that is the true
nitrite and the same kind of a nitrite is found in ham, corn
starch and so forth; those are genuine nitrites.
Q. Nitrite of ammonia is a genuine nitrite?
A. You are right, it is.
( But won't bleach flour?
A. I never tried it, but I am certain it will.
Q. Does not without the nitrates being first changed to ni-
trites?
A. Well, that is a question I could not answer, but wouldn’t
be surprised they did.
Q. I don’t care about your surprise, you say you could not
answer that question?
A. Well, I don’t care with the limitation en it.
Q. You don’t know about it, you could not answer?
A. I think we have some more study in that line now.
- Q. What plants will change nitrates to nitrites and also
change nitrites to nitrates?
5 Zopepepep
5,
LEXINGTON MILL AND ELEVATOR OO. VS. U. 8. OF A. 1089
A. Well, I know that—take germinating barley, that iv; a
plant-which will reduce nitrates to nitrites very rapidly, and
other germinating seeds wilt reduce nitrates to nitrites. I have
taken barley and—
1478 Q. Just a moment, doctor, please. I intended merely
to call for the list of plants that will do that thing, and
not for experimental detail because we want to hurry along.
A. Well, I would not be able to give you the list, but I have
tried it with germinating corn, germinating barley and several
others, and I found that the nitrates are reduced to nitrites.
Now I don’t know of any plants that would change nitrites to
nitrates; there may be some but I don’t know of any, but of
course, there are bacteria which are plauts which will oxidize
nitrates to nitrites.
Q. You didn’t understand my question. Now just give it
close attention and see if you can answer it. What plants are
there, if any, which will change nitrites to nitrates, and also
which will change nitrates to nitrites?
A. Well, I have answered that.
Q. What plants? ;
A. I have answered it in my former question.
Q. I think not, you said they would do it one way but you
don’t know whether they would do it the other or not?
A. I said I knew of some plants that would reduce nitrites
to nitrates and mentioned it, but I said I didn’t know any plants
that would oxidize nitrates into nitrites, although bacteria,
which are also plants will oxidize nitrites into nitrates, and also
reduce nitrates to nitrites.
Q. Do you know of any plant which will do both?
A. I don’t know any, no.
Q. That is what I thought. Name in detail the human
body’s natural defenses against nitrites, you referred to them
yesterday, give us the whole program completely, now, profes-
sionally, so that the toxicologists will say there is the truth or
there is the error—the body's natural defenses against nitrites?
A. Nitrites when they enter into the stomach, that is the in-
organic nitrites, when they enter into the stomach are rapidly
consumed by the bacteria that are in the stomach and also
in the intestines. If organic nitrites are given such as ethyl
nitrite, or I should say amyl nitrite, the gastric juice decom-
poses the amyl nitrite into nitrous acid. This nitrous
1479 acid immediately decomposes because it cannot exist as
nitrous acid, and any NO2 which is formed, will com-
bine with the mucus which is secreted by the stomach, and then
it will make fine food for the bacteria and be rapidly consumed.
Any nitrite that goes through the body, that is through the in-
testinal tract and is absorbed into the body will be oxidized to
69—3533-3534
vi
"nee are
1090 LEXINGTON MILL AND ELEVATOR OO. YS, U. 8. OF A.
nitrate and some of it will be broken down into other forms,
but nitrites, nitrite medication, increases the nitrates in the
urine, the nitrate medication on the other hand will also prob-
ably produce nitrites in the gastrointestinal canal. The pan-
creatic ferment, this ferment which is always secreted by the
sweetbread gland, will reduce nitrates to nitrites, and the fact
that this ferment can do that that we are taking in nitrites
with our vegetables daily, and other food stuffs, why, there
must be some defense for the nitrites generated by this pancre-
atic ferment from the nitrite, and this defense that I have
mentioned, namely bacteria; second, oxidation; third, different
compounds producing decomposition compounds, and fourth,
entire consumption of the nitrite as such. The same thing is
true of the sulphur dioxide that the United States Government
is going to allow, the same process would take place there on
that, the sulphur dioxide.
Mr. Butler: I move to strike out his forecast of what the
United States Government is going to allow.
The Court: Oh, yes, you are asked the question there.
A. All right; I beg pardon, Judge, that is all right.
Q. Has your answer to my question, asking you to enumer-
ate the body’s natural defenses against nitrites heen completed?
A. Well, I think it is.
Q. You think it is full and scientifically accurate so that
other gentlemen as learned as you are will be able to understand
from a strictly scientific standpoint, what your views
are?
1480 A. Well, I think my views are sufficiently clearly
stated there so that—I can elaborate on them, if neces-
sary, or they can elaborate on them. I think I have put in all
the premises necessary to cover your question.
Q Do bacteria change nitrates to nitrites?
A. Oh, yes, I should say probably 75 per cent, that is ni-
trates to nitrites?
Q. Yes.
A. Reduce them just about 75 per cent, I would believe they
would do that.
Q. Are nitrites foods? A. Foods?
Q. Yes.
A. I believe they are excellent foods for bacteria.
Q. For the human family are nitrites food?
A. No, I would not consider nitrites food for the human
Q. Well, you said yesterday, that nitrites were essential to
life; do you mean that we must eat nitrites to live?
A. No, that we must have nitrites in order to feed the vege-
table kingdom, so that we can have food from the vegetable
LEXINGTON MILL AND ELEVATOR OO. VS. U. 8. OF A. 1091
kingdom, that if this process did not go on, continually on,
animal and vegetable life would become extinct; that is what
I meant by that. — :
Q. Now, I want to be perfectly plain with you about that.
Now, yesterday when Mr. Elliott elicited from you by his
questions the statement that nitrites are necessary to life, you
meant that they were necessary to the life of plants and that
the human family could not live unless plants live?
A. That is exactly what I said.
Q. You did not by that testimony, Dr. Wesener, I trust,
expect this court and jury to believe that it was your opinion
as a toxicologist that the consumption of nitrites by the human
family, nitrites as such, was necessary to the life of the human
family, did you?
“XA. Why, most certainly not; why, of course not.
Q. But yesterday when you said they were necessary to
life you did not explain that it was necessary to the life of
plants and that plants were necessary to the life of people,
did you? A. Yes, sir, I did; yes, sir, I did.
1481 Judge Scarritt: He testified the very thing.
A. Yes, I did, yes, sir.
Q. And by the same reasoning you say that the nitric acid
which is manufactured by the flaming arc is necessary to
life, too, don’t you, but you do not mean it is necessary to eat
it in order to live, do you?
A. No, sir, not necessary to eat, although we often put it
in bread to get a better loaf of bread, the same as hydrochloric
acid and other acids.
Q. Alsop has been doing that all the time?
A. The regular baker does.
Q. What baker customarily uses nitrite to make bread?
A. I couldn’t tell you, but it has been used; they have used
hydrochloric acid; we have given them instructions along that
line to show how the gluten is broken down by these different
acids to make it more resilient, because the gluten never works
good until acids act upon the gluten.
Q. And you believe, do you not, that notwithstanding ni-
tric acid in appropriate quantities is poisonous and will ruin
bread, that you can trust the baker sense, dictated by com-
mercial expediency, not to add too much of that poison into
the bread, don’t you?
A. Well, if he had it anywhere near teo much, it would not
even then add a poison, the yeast would never go, the yeast
would stop him right there as it would not be a poison, the
amount of nitric acid that he would use in his sponge.
Q. Is there any oxidation process in the intestines?
A. Yes, sir, a reduction.
1092 LEXINGTON MILL AND ELEVATOR CO. VS, U. 8. OF A.
Q. By what means? A. By enzymes or ferments.
Q. You said reductions, did you?
A. And also oxidations, yes, sir.
oh Oxidations by what particular bacteria works the in-
A. Those are chemicals, we must recognize, I believe, as
chemical ferments, I don’t think they have been isolated, but
they are spoken of in that sense by bacteriologists and
1482 physiologists, and so on.
Q. Are you familiar with the articles of Mayberry with
respect to the amount of nitrites in the air?
A. No, I don’t believe, never seen it.
Q. Have you any information on that subject at all?
A. No, I have no definite information; 1 understand there
is something in Thorpe’s or Watts’ Dictionary, but I have not
ever even looked it up.
Q. If you were informed that in the park vicinity of the
city of Cleveland there were nitrites in the air about one part
per million—1.2 parts per million—would that seem to you
to be about reasonable, or have you any idea of what ought
to be found, what would be expected in such a case?
A. No, I have no idea at all; I am going to make those tests,
but I have not made them.
Q. So then, what would naturally be expected here at Kan-
sas City or in your bedroom or in your kitchen you could not
give us any information about? A. No, I could not.
Q. And the particular form in the air?
A. Well, on decount of the chemistry of bleaching that
is where the oxide compound of this coloring matter is formed,
this compound, that is not a nitrite or nitrite reacting ma-
terial; I must assume, of course, that there exists there oxide
of nitrogen, if not, if the ammonia nitrite, why, then, it is the
acid of the flour itself that would decompose the ammonia
nitrite and liberate the oxide nitrogen in order to bleach this
Q. I am not asking about the bleaching process at all. I
am asking you if you have ever scientifically ascertained the
form of the nitrite in the air?
A. “Yell, that is my answer, I have not been able to do that.
Q You have assumed that that does the bleaching?
A. Nobody also has done it.
. Q. You assume that does the bleaching?
A. Well, I know it does.
Q. And on that assumption you know if it is nitrite of am-
monia it must be broken up and be decomposed in the
1483 flour? <A. Or exist as oxides of nitrogen.
Q. And then the NO2 will do the bleaching when the
gas is liberated, so that is assuming ee in the air do the
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 1098
bleaching, then you reach the determination that it must be
done in a certain way, and from the fact that it must be done
in a certain way you reason that it does it; that is your line
of reasoning on that, isn’t it?
A. Based upon the actual chemistry of the coloring matter
which I understand but which you do not understand.
Q. No, of course, Doctor; but now, Doctor, I hope you
will not be to hard on me because—
A. Well, I don’t want to be.
Q. Because I can’t understand your talk.
A. I don’t want to be.
Q. But you assume that the nitrites in the air bleach, and
because you assume that the nitrites in the air bleach, you
assume that NO2 must be used or broken up in the same way,
and therefore you say that the nitrites in the air bleach, that
is about your line of reasoning according to this science that
you understand and that we do not?
A. I say that it is the ammonia nitrite bleaches, providing
the acid in the flour breaks up the ammonium nitrite and
liberates this new nitrogen peroxide, and if it is not that
process, then the oxide of nitrogen as such exists, bleach the
coloring matter, because it must be the oxide of nitrogen to
act on this coloring matter to bleach the flour, and ammonia
nitrate as ammonia nitrate never could bleach the flour, it
takes an oxide nitrogen to bleach, it has to be that.
Q. What chemical changes take place when nitrosylchlorid
is used to bleach wheat flour, and go to the blackboard and
write it.
Counsel for claimant objected to the question as immaterial
to any issue in this case.
A. (Witness writes on blackboard) NOCI.
Q. On the blackboard you have written the chemical letters
NOCI. Does that represent to the learned mind of a chemist
all of the chemical changes which take place when nitrosyl-
chlorid is used to bleach wheat flour?
1484 <A. No, it does not, but you asked me—
Q. Please write on the board the chemical formula or
formulae for such changes that take place when flour is
bleached by the nitrosylchlorid which you patented?
A. In doing that I wish to state—
Q. Well, do it first and then state.
Judge Scarritt: He can state, if Your Honor please.
Mr. Butler: I ask to have him do it first and then state.
The Court: Oh, well, he can write it out and state it.
1094 LEXINGTON MILL AND ELEVATOR OO. YS. U. 8. OF A.
A. I would like to state that the formula I gave yesterday
was my hypothetical formula based upon three factors that I
have not as yet made the comparison analyses to form these
three factors, which is usually considered pretty good chemistry,
the formula would be this way :—
Mr. Butler: I move to strike out his answer as not re-
sponsive; I didn’t ask him to define what he said yesterday.
A. C10HI6NOCL And for the other would be N203.
Q. Well, I know, but how is that gotten at, you don’t mean
—if you were teaching chemistry and say here you have a sub-
stance called flour, and here the compressed arrangement like
a soda water fountain, or something like that, you have com-
pressed gas equal NOC1, you don’t mean to tell this court and
jury that you have written -on that blackboard the chemical
steps to produce the result of bleaching, do you?
A. I do.
Q. All right.
A. The coloring matter in flour is C10H16, and that color-
ing matter is the substance that has this powerful effect over
nitrosylchlorid, and therefore when that comes in contact with
C10H16 it makes that.
Q. What are the three factors that you refer to?
A. These three factors?
1485 Q. Yes.
A. I didn’t say there is three factors, I said the color-
ing matter is C10H16, as I make it out, in flour, and when
that NOC] comes in contact with it it combines to make this
new compound, and that is almost colorless.
Q. What nitrite or oxide of nitrogen does the bleaching?
A. Well, this is no oxide of nitrogen.
Q. Well, just before I asked you this line of questions about
NOCI you say flour had to be bleached by the oxide of nitrogen
or it would not bleach, that is the reason you knew that the
nitrite in the air bleached it. Now, you say that you have in-
vented a thing that does not use the oxide of nitrogen to bleach
it at all?
A. That is true, the regular way of bleaching flour, it is
done in a commercial way and is this way, there is your oxide
of nitrogen made by the oxide process NO23.
Q. Oh, yes. A. That is the one I refer to.
Q. So then in this nitrosylchlorid you get old N203 in?
A. Old N208.
Q. So it is the same thing that bleaches it by the Alsop
process, is it?
A. No, sir, the Alsop process was oxide of nitrogen, and the
other is NOCI which is not a nitrogen.
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 1095
Q. You did tell me yesterday that N203 was the thing which
bleached in the Alsop process?
A. I have shown that in that last formula.
Q. Did you? A. Yes.
Q Now, this formula here is the formula which results in
your NOCI?
A. No, sir, that is the formula right above there, that is
that formula for NOCI and that is the formula for the Alsop
Now, is it the NO which bleaches in the nitrosylchlorid?
It is the NOU! as a whole.
The NOC! as a whole, Cl means chloride, dop’: it?
A. Yes, sir, but that is a definite compound, NOCI is a
chemical entity, just as much as’ hydrochloric acid is one.
Y. Now, NO is an oxide of nitrogen, isn’t it?
NO is an oxide of nitrogen, but not in that relation.
Q. I didn’t ask in that relation, and it is made by the Alsop
process, isn’t it? A. NO is, yes.
Q. That is nitrogen that is made, isn’t it?
A. Yes, sir.
Q. Which comes in contact with air it is NO2, isn’t it?
A. Some NO2, and then a great deal of N203, according
to my analysis.
And these oxides of nitrogen are all poisonous, are they
Q.
not?
A
-
Q.
A.
Q.
A.
Q.
A.
es,
Q.
When taken in sufficient concentration.
Yes, I understand.
Is chlorine gas a poison?
In sufficient concentration, yes, sir.
Is chlorine gas a deadly poison?
In sufficient concentration, yes sir.
Is table salt a poison?
When given in large enough doses it acts as a poison,
sir.
Is flour a poison? A. When eaten raw, yes, sir.
Q. So, then, we have one substance that is a poison in and
of itself, and it is flour, is it not, that is the only substance
that you have mentioned as being a poison without qualifica-
tion, isn’t it?
A. I don’t know about that, I said flour eaten raw, of course
it is not a food, eaten raw in sufficient amounts of it, it acts as
a poison.
Q. Would you according to the science that you understand
and that I do not, would you say that you are scientifically cor-
rect when you say that strychnine is a poison and flour is a
poison under like circumstances, to-wit, when you take enough
of either, that is scientifically correct according to this science
that you tell us that you understand and that we do not?
td
1096 LEXINGTON MILL AND ELEVATOR ©O. VS, U. 8. OF A.
Mr. Elliott: The witness never said that, Mr. Butler. He
was simply referring to that coloring matter.
Mr. Butler: He said I didn’t understand chemistry,
1487 — he told the truth all right, he told the truth at that
me.
Q. Well, according to your profession, then, according
to your profession which I understand and which you under-
stand, ‘they insist that I understand it, and I will admit it,
so as to get along, you think your answer is scientifically right
when you put table salt and flour in the same category
as chlorine gas, cyanid, prussic acid and strychnine, do you?
A. Well, there is a difference of degree, and of course the
way you put your questions it would be impossible to answer
it in plain and simple language unless of course you start out
these different ones; flour is only a poison, raw flour, when
eaten in large quantity, on account of its mechanical irrita-
tion to the mucous membrane like swallowing glass.
Q. Well now is bread a poison? A. Bread a poison?
Q. Yes.
A. No, I don’t know of bread, that is food, that is food of
course, that is made from flour but it is food.
\, Is salt food? A. Up to certain quantity.
Q. Is food poison?
A. Yes, if you take too much of it, you bet it is.
Q. Is bread poison?
A. You can get a poison re-action from over-eating with
Q. Is sand poison?
A. In a mechanical way it would be a poison.
Q. Is glass poison?
A. Ina mechanical way it would be a poison.
Q. Can you name any substance that is not a poison?
A. Why, all depends of course on your premises, there is
always that—
Q Iknow. A. I went to answer you.
Q. Is there any substance which is not a poison?
Judge Scarritt: Just answer the question.
A. I answer it in this way, that I don’t know of any one
substance inherently of itself in a certain dose which is a
poison; it is always a question of the test, the amount, the
concentration, and other conditions that have got to be taken
into consideration before you can call it a poison; all toxi-
ecologists are agreed on that; you will find it in every
1488 text book on toxicology.
So as to be perfectly clear then if the old state of Mis-
seuri that it is a crime to administer any poisonous substance
LEXINGTON MILL AND ELEVATOR CO. VS. U.S. OF A. 1097
to any person with intent to kill or injure that person, now,
assume that is true, then when it was proved that strychnine
in some amount not stated was administered, you could truth-
fully and conscientiously say that no poison was added unless
you were told how much strychnine was given intending to kill
the woman, if it was a woman couldn’t you?
A. I would have to answer that in a scientific way, as I
understand, and a physiological way, and then I would have
to disregard the legal side of it because I know nothing about
that, that would be for you.
Q. Well, now, as a scientist, that is what I am trying to get,
I can answer the law of it and put the fellow in the peniten-
tiary, that would be simple enough, but as a scientist?
Mr. Helm: Because of the intent would you—
Mr. Butler: Because of the poison.
Q. But now, as a scientist this hypothetical question is
given to you? There was administered to Mary Doe strych-
nine; the proof shows that; Doctor, as a pharmacologist, tox-
icologist, anelyist, expert on foods and pumper of stomachs,
was there a poison given to the woman; what would you say?
A. Well, if I found strychnine I would say yes, I found
strychnine, but I don’t know whether it was given in a poison-
ous dose unless I find it in a poisonous dose I could not an-
swer whether death was really the result from the strychnine
administered unless I find enough strychnine there to account
for it.
(Question read by the reporter.)
A. I would say that strychnine was given which in certain
doses is recognized as a poison, and in other doses recognized
as a very fine remedy.
1489 Q. Then if the question was put this way: We are
unable to tell you how much strychnine the man gave
the woman, would you be obliged to answer that you couldn’t
tell whether he gave her poison?
A. I would have to answer that way, I couldn't tell.
Q. And if it was a very minute dose of strychnine, less
than an ordinary medicinal dose, you could in good conscience
say that no poison was given?
A. I would have to say that no poison in that small dose
was given because strychnine is not a poison except a dose—
Q. Yes, that is right, because strychnine is not a poison?
A. In such a dose as you question.
Q. So that if I would get enough to give Judge Scarritt in
his food a little cyanide in every biscuit that Judge Scarritt
should eat from now on till I leave town, and you were asked
1098 LEXINGTON MILL AND ELEVATOR 00. VS. U. 8. OF A.
by this court—assume that in each of these biscuits there
was some cyanid—we can’t tell you how much, then you would
have to truthfully and conscientiously say: Until I know
how much I covid not answer as a scientist whether Butler
gave some poisun—
Mr. Scarritt: We object to that, if Your Honor please, just
a stump speech before the jury, and for the reason that there is
no evidence that there is any cyanid in this flour or in this
case.
The Court: No, it is competent if there are two theories
here, and I think he has right to illustrate and show the posi-
tion that the witness occupies.
Judge Scarritt: He can show it by some relation to the
case, and not make these stump speeches.
The Court: Well, the question is a little bit objectionabl
that way, but he may answer the main part, I don’t care any-
thing about these flourishes.
A. Well, I have one answer to make to that, and that
1490 is no substance which of itself can be recognized as a
poison in small doses.
Q. Well, what do you mean, if it is given in less than ac-
tual physiological doses, then there is no poison, is that so?
A. It could not be considered as a poison.
Q. What is the most virulent poison known?
A. I should think prussic acid is the most deadly.
Q. You say prussic acid is a most virulent poison?
A. I know it, yes.
Q. There are some germs that are more poisonous, are there
not, associated with disease, I am thinking of tetanus or lock-
jaw, that gives the lockjaw, somebody told me that that was a
very bad thing, and a most terrible poison; is that so within
your knowledge?
A. Why, tetanus, the tetanus bacillus of course is a disease
—that is, it produces disease in men, it kills men, no doubt
about it secreting a poison, but I don’t believe the tetanus tox-
in itself would be considered as virulent as the living cell.
Q. Doctor, sirice we adjourned it has been suggested to me
that the average fatal dose of prussic acid is one grain and of
..is one-twentieth of a grain, and aconitin is one-thirtieth to
one-twentieth of a grain, is that right?
A. That may be right, that may be right.
Q. Aconitin would be twenty or thirty times as poisonous
as prussic acid?
A. Well, in that respect, yes, of course I had in mind, the
gas that you breathe, it is about instantaneous, I don’t know
just how much of the gas exactly you have to breath.
4 keen
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LEXINGTON MILL AND ELEVATOR CO. YS. U. 8. OF A. 1099
By Mr. Lyons:
Q. Couldn’t hear you Doctor? ‘
A. I said the gas, prussic acid gas, which we breathe, of
course the effect of that is almost instantaneous; I did not
figure just how much of that gas would be necessary, that is,
take a grain or two grains, but I had in mind the rapidity with
which it worked.
Q. Now, to further illustrate your position about
1491 poison, I understand you to say that no substance is in
and of itself a poison, and you must have an idea of
quantity, and the quantity must be such an amount that some
physiological result would be disclosed to the observer.
A. Yes, to its deleterious effect either in one dose or in
several doses given for a long, long period.
Q. I don’t mean a single dose, that is, take it in any food,
in which you are a specialist, no substance can be said to be
poisonous until there is enough of it to show symptoms either
by a single dose or for a continued period?
A. Yes, sir, or by constantly taking the poison.
Q. Now, let’s see if we do not get into some practical diffi-
culty in keeping our food pure, if it is true the nitrites may be
taken in such quantities as to be injurious, I think we agree up-
on that? A. Yes, sir.
Q. So, then, if there is seme in ham but not enough to be a
poison some in turnips but not enough to be a poison, the New
England dinner but not enough to be a poison, some in bacon,
but not enough to be a poison, some in water but not enough to
be a poison, some in flour but not enough to be a poison, you
think that it still would be all right as long as there wasn't
enough in any one of the things to be a poison, and that you
could conscientiously swear that each one was free from poison-
ous substances unless the taking of one would show symptoms
of injury?
A. Unless the taking of one would show symptoms of in-
jury either at that time or by constant use of that substance.
Q. Yes, I know, so that the situation would be this: We
will say we have half enough in ham to be poisonous, half
enough in bacon to be poisonous, half enough in carrots to be
poisonous, and there is none in the bleached flour to start with,
but when we bleach it by the Alsop precess we put half enough
in the flour to be poisonous, then in a suit by the Government
to prevent adding to flour, or to prevent adding to ham, or to
prevent adding to bacon or adding to water, the inexorable
mandates of your science would require you to say that
1492 no poison was added to either, am I right?
A. I would say that no poison was added to either in
that sense, any more than nature adds a poison to that same
flour when you age it, not a bit more, nature does the same
thing.
1100 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
Q. Well, I know, now, nature produces a great many things
that we must avoi® doesn’t it? A. A great many things.
Q. Like typhoid fever? A. Yes.
Q. Nature sometimes through seepage and other things per-
haps pollutes the waters of the stream so that those who drink
the waters take typhoid fever from it?
A. But nature does not do that but man does, man pollutes
the water?
Q. By natural processes it occurs? A. Yes, sir.
Q. So that you would not argue that because such things oc-
cur by natural processes that these things might be added to
food to make it still better without adulterating the food,
would you?
A. I would not argue entirely that way, but since I am re-
peating in this flour bleaching exactly what nature does, then
I feel I am following her exact ways and methods and which
are so appreciated by the consumer that he wants a white flour.
Q. Is it within your knowledge that in cities by manufact-
uring plants nitrites are more common than in the country?
A. Well, I have heard that stated but I don’t know whether
that is true; I think the fresh country air generates just about
as much nitrites as you get in the cities and there may be more
because it is—this electrical phenomena that is going on all
the time containing this nitrogen and oxygen air.
Q. It is by Mayberry that in the park regions of Cleveland,
Ohio, which is a manufacturing town— A. Yes.
Q. There is, as I hold the figure in my mind, about 1.2 parts
per billion of atmosphere, but that in the worst parts of
1493 the city by the factories by thedecaying foods and excreta
and so forth, where disintegration is taking place, that
it is twelve times as bad. Now assuming that to be true, would
that in your opinion [by] any reason why country air is more
wholesome than the foul air of manufacturing cities where mar-
kets are not kept clean and the like?
A. Well, the foul air in the manufacturing city where they
have this decay going on has nothing to do with the forma-
tion of oxide of nitrogen in the air.
Mr. Butler: TI move to strike that out as not responsive.
The Court: Yes.
The Witness: Well, vour assumption is one that I could
not accept, sir.
The Court: But he is assuming that.
Q. I ask you to assume it for the purpose of your answer?
Of course, I would not ask you to say it is true, because you
don’t know?
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 1101
A. Scientifically, of course, your assumption is impossible,
that is why.
Mr. Butler: I move to strike that out.
The Court: Yes, sir.
A. Well, I want to be honest with you, Mr. Butler, but I
would like to answer it in an intelligent way; it is almost im-
possible to do it, that is the trouble.
Q. I see, it is but you can answer it? I will withdraw that
and make it simpler. If the nitrites in this air in this room
was multiplied by twelve, can you as a scientist tell us whether
or not the air would be more wholesome or less wholesome by
the increase of nitrites?
A. Well, there wouldn’t be any difference in that amount as
you put it.
Q. It appears in proof here that the dilution or concentra-
tion of the good flour, the flour seized, was a thousand
1494 parts to the million, now suppose we would add, make
this air in this room contain a thousand parts of NO2
to the million of air, are you able to tell us whether the air
would be made more wholesome or less wholesome, or whether
it would not be affected by it?
Mr. Elliott: I object to that question as not properly re-
flecting the testimony, at least I have no recollection of any
witness testifying that this flour was [bleach] with any such
concentration.
The Court: Well, counsel has the right to put that. Ulti-
mately that is for the jury to say whether the foundation is
_ based upon testimony or not. In my ruling I am not holding
whether that is so or whether it is not so. He may answer.
To which ruling of the court claimant then and there duly
excepted.
(Question read by the reporter).
The Court: It amounts to this, assuming this to be so,
whether it is or not.
A. Well, the air would for breathing would be less whole-
some naturally, that would be too much of a concentration of
NO2 in the air to breathe as air.
Q. It would kill people if they were kept in the room, would
it?
A. For a long long time, yes, it would generally produce
certain change.
Q. Asphyxiation, put hemoglobin in the blood and strangle
them?
1102 LEXINGTON MILL AND ELEVATOR OO. VS. U. 8. OF A.
A. Eventually I presume that would do that with that con-
centration, yes, sir.
Q. The same as it does the moth?
A. They have not proved they killed any moth to me yet.
Q. Not to you? A. No.
1495 Q. Well, you are not on the jury. When you left-the
witness stand I wrote a chemical formula on the board,
if you will turn around and look at it, I will propound a ques-
tion to you in the light of that. At the top of the board is
NOCI, that is your acid for the re-agent; the next is the
formula which you say takes place when it bleaches; the next
is the formula which you say takes place when Alsop process
bleaches. Then I have written NOC] Nitrosyl chlorid, plus
H20—water—equals HCl hydrochloric acid and muriatic
acid, plus HNO2. Is that chemical formula a possible chemic-
al formula when NOC! comes into contact with water?
A. That is possible yes sir.
Q. HNO2 is nitrous acid, isn’t it?
A. HNO2 as such is nitrous acid, but it would not exist
—but it does not exist as nitrous acid, it would not exist as
nitrous acid.
Q. Well, not isolated. Now when NO2 comes into contact
_with water it produces HNO2, doesn’t it, and HNO3 in equal
molecular parts? A. Yes, sir, it does.
Q. And if HNO2 takes on 1 of oxygen it becomes nitric
acid, doesn’t it? A. Yes, sir, it does.
Q. So then NOC! in contact with water produces nitrous
acid just the same as NO2 produces nitrous acid when it comes
into contact with water, doesn’t it?
A. NOC1 does with a certain amount of water, a sufficient
amount of water.
Q. That is the formula I tried to have you write, but I did
not understand it well enough to make myself clear. Now
I want to ask you about N203, and I want you to answer fully
and finally so I won't have to repeat, if you can, because T
want to finish. What oxides of nitrogen are formed by the
flaming are in the Alsop process of bleaching flour, and give
the formula for each?
A. The first oxide of nitrogen, that would be formed in
the flaming are when it comes in contact with the air would
be nitric oxide NO, this NO would take up oxygen and form
NO2, and then possibly N204 which is virtually the
1496 ‘same thing, and then N208, that is you would get NO2
as one and N203, that is all I know of; there may be
some more but that is all that I know.
Q. Is N203 a gas?
A. I believe it is under certain conditions.
LEXINGTON MILL AND ELEVATOR OO. VS. U. S. OF A. 1103
Q. Is it a gas as made by the Alsop bleacher for bleaching
flour? A. I think it is there, yes.
Q. What color?
A. I couldn’t say, I have never seen it in sufficient con-
centration as made by the Alsop machine.
Q. Have you ever seen N203 as a gas anywhere?
A. I don’t know that I have as a gas.
Q. What is the chemical process by which it is made by
the Alsop machine? A. Well, it makes NO.
Q. Now let’s go slow, we started out with NO? A. Yes.
Q. Then we add one of oxygen from the air which makes
that NO2, that is nitrogen peroxide? A. Yes.
Q. The same thing that is mentioned in the patent?
A. Yes, sir.
Q. Now what is the next step?
A. Then you have some NO left which is in the NO? which
makes the N203.
Q. Just wait a moment, the next step would be, would it
not, if water was brought into contact with it, nitric and ni-
trous acid?
A. Well, you would have the NO there too, but sometimes
ft would make N203.
Q. How is that.
A. You still have the NO2 there which would make N208.
Your NO does not oxydize normally to NO2, not by any means.
So you would mix NO?
You have NO and NO2, make N203.
First then we have NO2? A. Yes.
And NO2 plus NO makes NO3. A. N203.
Now that is what takes place, is it?
Yes, sir, that takes place.
And that is what bleaches?
And that I found to be the active bleaching agent.
Q. And you can’t tell us whether it is a gas or a liquid?
A. It is a gas as it comes from the Alsop machine it
is mixed with the air certainly.
What is its density, color and odor as it is, give any
formed?
Well, I could not give it now, I have not looked it up.
Can you give its density?
No, I don’t know that.
Can you give its color?
Well, I believe this compound is bluish or green at the
time, that is, when it is in the liquid form.
Q. I am speaking of it as a gas?
A. Well, I think—
Q. There is no blue liquid used by Alsop to bleach flour,
is there?
rr
roporke S rorosope
1104 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
A. Oh no, no, not at all.
. Q. Now let’s stick to it then?
A. As I have seen it liberated of course it appears to be
a sort of a reddish pale reddish color; now whether that is
the pure N208 or not I don’t know.
Q. What color is that?
A. Its natural color.
Q. It is pale reddish?
A. There may be some N203 in there or that may be only
NO2, NO2 is very red.
Q. What do you think it was that made the flour obtained
of Leflang, who manufactured the flour seized, give this odor
that he described?
A. That was that compound I have written there on the
board.
Q. You tell us it smelled exactly like the NO2 let loose
in court here?
A. It smelled somewhat like it, but it is not the same, it
might be everybody mistaken the compound as an odor.
Q. Are you familiar with the German work called the
Gmelin Hand Book Inorganic Chemistry,: 7th edition, pub-
lished in 1907? A. Yes.
Q. Is that a reputable work?
A. I consider that a very good work, yes, sir.
By Mr. Lyons:
Q. Can’t hear.
A. I consider that a very good work.
Q. At page 263 of that work it is stated that N203 does not
exist as a gas, but that the liquid N203 on going to the gas-
eous state breaks up completely into nitrogen peroxide NO2
and nitric oxid NO in the presence of oxygen in the air NO
goes to NO2, is that true?
1498 A. And NO in that same mixture, isn’t it?
Q. Well, do you agree with the statement of the author?
A. I agree with the statement so far as he says that it
breaks it up into NO2 and NO that makes the N203, you get
that combination.
Q. Let me see, do you agree with this statement; N203
does not exist as gas; is that true or false?
A. I have never made the test, I presume the author has,
I couldn’t say, I couldn’t say to my knowledge.
Q. Yes, it does exist as blue liquid you say?
A. Yes, sir, a blue liquid.
Q. And you say that no biue liquid is used to bleach this
flour? A. Never seen any, no.
Q. But without knowing whether or not N208 exists as a
gas at all you have sworn, have you not, over and over and
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 1105
over again, that it was N203 that bieached this flour that was
seized?
A. Certainly have done that, yes sir.
Q. When you don’t know whether a thing ever existed or
not how in the light of science can you swear that that thing
bleached this flour?
A. That is very easy.
Q. I see it is.
A. Because I have tried absolutely pure peroxide of
nitrogen, which I knew was pure this way, and that don’t
bleach flour, and then I have estimated how much N203 there
was in this gas as you see it there, and how much NO2 and
I found 75 parts of N203 and 25 parts of NO2.
Q. Was that N203 a gas?
A. I don’t know what it was, it is in there.
Q. Was it a solid?
A. It was simply a mixture that gave that analysis.
Q. Was it a liquid?
A. It appeared to be a gas or a combination that is, as
it comes from the Alsop machine.
Q. Did it have density?
A. Didn’t go into that.
Q. Did it have color different from the Alsop machine?
A. Didn’t see any color, the gas is not concentrated, I
think.
1499 Q. All right, so then without knowing whether it had
density, form, shape, color, liquid existence or solid, you
do swear that it was N203 that bleached the flour?
A. N203 and I have made it direct from sodium nitrite
right underneath this coloring matter in solution and liberated
it before the air could strike it, and that bleached it, and that
was N203.
Q. And you also agree with this statement from the Gmelin
Hand Book of Chemistry that N203 does not exist as a gas?
A. Can not exist as a gas itself, it decomposes, but then
you have NO2 and NO in the mixture and that may go as
N2038.
Q. Well, if N203 does not exist as a gas can the Alsop
process bleach flour with N203 as a gas?
A. Because there it exists, as a gas, as I say in the Alsop
process NO and NO2, that is they are separate but that makes
the N203 and there it exists as a gas but not as N203 but
NO2 plus NO makes that.
Q. I am sure that I do not make myself clear to you. If
there is no such thing in existence as N203 as a gas, now
assume that to be true, then I ask you whether as a scientist
70—3533-3534
1106 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
can it be true that N203 is a gas and as such bleaches flour
in the Alsop process?
A. It is the—
Q. Now can’t you answer that yes or no, Doctor?
A. No.
Q. You cannot.
A. Why, the N208 could not exist as N203 in a-gas, but
it can exist as NO2 plus NO and that is what does the work
in the Alsop machine.
Q. NO2 made at the flaming arc? A. Yes, sir.
Q. When NO2 comes into contact with the air as it goes
to NO2?
A. And a lot of NO left in it which makes it NO plus NO
which makes N203.
Q. The evidence in this case shows that the Alsop bleacher
was some 30 feet—the gas machine, the gas producer, from
the flour, that the NO2 from that was conducted by means of
: a pipe to a storage reservoir.
1500 A. NO2 or the NO, which now?
Q. NO or NO2, that the gas resulted. I want to ask
you whether you are of opinion that the NO2 started from the
flaming are passing through?
A. It don’t start there, it don’t start there.
Q. I thought you said that was the first?
A. NO starts there and there may be—
Q. I misspoke myself, whether NO starting from the flam-
ing arc can pass with the blast of atmosphere through the reser-
voir to agitator with the flour and remain NO all the time?
A. No part of it becomes NO2.
Q. Can any of it remain NO?
A. Oh yes, a great deal of it, oh, yes, that is where the
books on chemistry have got something to learn yet, but you
hold the NO changes into NO2.
Q. I see, the books on chemistry are mistaken on that?
A. No, they have not gone into that to the final point; I
thought that was right too, but I found it was not exactly right.
Q. When did you find that out?
A. Oh, I have been working on that for the last two or
three years.
Q. Was that before or after the hearing at Washington that
you found that out?
A. I think I heard something from Prof. Snyder before on
that point, and I may have looked into it myself after that.
Q. Was that before you found out that this Alsop process
put nitrites in the flour or after?
A. I found out that the nitrites were not in the flour was
after the Washington hearing.
LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A. 1107
By Mr. Lyons:
Q. Can’t hear you.
A. After the Washington hearing about the nitrites on flour
bleached by NOC1.
Q. Immediately after the flour be subjected to the Griess
test will you get the nitrite reacting material?
A. You will get the nitrite reacting material.
Q. That is the Griess reaction?
A. Produced with the Griess reagent, because it consists of
the same group that acts like a nitrite. but that is not a
nitrite.
1501 Q. The same reaction that you get on treating the Alsop.
process the same way, exactly? A. Yes.
Q. On testing the flour before it goes in, it will uct give a
reaction test, but after it comes out immediately it will?
A. Yes, sir.
Q. That is true, isn’t it? A. That is true.
Q. But it is not nitrite?
A. That is not a nitrite, no sir.
Q. What is the difference between a mixture and a com-
pound in chemistry?
A. Well, a mixture is simpiy 2 physical preparation which
may be only mechanical and which does not relate to the
chemical mixture a compound may be a chemical where there
is two or more elements in combination.
Q. What is N203 a mixture or a compound?
A. N20 radicle is a compound.
Q. I am not talking about the radicle, I am asking about
the substance. A. N203 is a compound.
Q. N203 is a compound but does not exist as a gas?
A. Not as I know of, no.
Q. Is it not understood by chemists generally that the
mixture of NO2 and NO with air goes completely into NO2,
and makes no NO, isn’t that the chemistry of everybody of note
on the subject?
A. Yes, I believe that is the way it is understood, but I
know that NO and NO2 often go as N203 in making chemical
reactions.
Q. Well, I know.
A. No other body comes in, and simply get by applying
air it will all become NO2.
Q. Sir William Ramsey is a noted English chemist, isn’t he?
A. Yes, and a very dear friend of mine.
Q. Does your dear friend Mr. Ramsey lay it down about
in this way: that the mixture of NO2 and NO with air or
oxygen goes completely to NO2 and leaves no NO left?
A. It will eventually, yes.
Q. That is the way Mr. Ramsey leaves it?
1108 LEXINGTON MILL AND ELEVATOR OO. VS. U. 8. OF A.
A. It will eventually do that, yes, sir.
1502 Q. And still you say that N208 is the gas which bleaches
and also say that there is no such gas?
A. I say N203 is the gas that does the work, but it does not
exist as N203 gas, but NO2 plus NO, that is the only way I
could explain it.
Q. So it does not exist as N203 but as NO it does the
bleaching? A. NO plus NO2 which makes N203.
Q. NO mixed with other things?
A. All the elements are there to make this compound when
it — in contact with this coloring matter making N203,
Q. And so after all it is the NO2 mixed with other things
that does the bleaching?
A. It is the NO2 plus NO or N203 as such that does the
work.
Q. Mixed with other things does the bleaching?
A. Well, it goes as N203 according to my analysis, yes, sir.
Q But, I say, it is the NO2 mixed with other things that
does the bleaching?
A. Mixed with NO, it does the bleaching with NO.
Q But N203 is not a mixture but it is a compound, so you
have told me? A. Certainly, yes.
Q. But now you say after all of your analysis you have
reached the conclusion that NO2 mixed with NO does the
bleaching?
A. That would be my deduction because it is N203 and its
radicle that I find here does the bleaching, and I have liberated
this N203 directly underneath a woolen sack containing this
coloring matter, so that no air would come in contact with it,
and as soon as that N203 was liberated the color went that
quick, and I found that and got this N203 out of that coloring
matter.
Q. May any one educated in chemistry write N203 as in-
dicating a mixture, does that not indicate a compound?
A. That is such as a compound, yes, but you can also write
it NO2 plus NO is a compound.
Q. You say it is the mixture that does the bleaching; you
have said that it was N203 that does the bleaching, and you
say N203 can not be used to express a mixture in chemistry,
have you not?
1503 <A. I have said that, and my analysis of the Alsop gas
figures 75 per cent N203 and 25 NO.
Q. As a mixture?
A. As a mixture, and the gas comes through that, through
the air that goes through the flaming arc.
Q. But you say that N203 can not be used to write a mix-
ture?
LEXINGTON MILL AND ELEVATOR CO. VS. U.S. OF A. 1109
A. It is not a mixture, N203 is not, because that is a com-
pound, a chemical compound, I have seen the gas isolated as
-N203, now whether it could be as such in very infinitesimal
particles analyzed or not, that is something I don’t know, but
it analyzed as 75 per cent N203 and 25 NO2; I never seen
it, nobody else has seen it.
Q. You tell me you agree with these eminent German and
English authorities that it does not exist as a gas?
A. Well no, but they say there is a compound of NO and
NO2.
Q. No, a mixture?
A. Well, it acts like N203, sir; it acts like N203.
Q. Now give to the reporter in most exact and scientific
way you can the details of your analysis by which you prove
the Alsop gas to be N203? A. Well,
Judge Scarritt: I object to that as a repetition, as I under-
Stand it, it was done on the board there.
The Court: He may answer.
To which ruling of the court claimant then and there duly
excepted.
A. I drew the gas which came through the flaming are or
the discharge or the air containing the gas into a solution of
alkali.
Q. What alkali? A. Just a normal alkali.
Q. What substance?
A. Sodium or potassium, don’t make any difference, every
chemist knows what the alkali is.
Q. Which one did you use? A. Sodium.
Q. What sait-sodium?
A. Well, just a normal, of course soda usually means the
caustic soda.
Q. What is the formula?
A. NaOH. The air containing this gas was drawn through
this normal caustic soda solution for a given volume.
1504 Q. What volume?
A. Well, I forget now; I have none of these details
right here, you know, but I am telling how I did it, and this
will be sufficient information for your expert to repeat it if
they see fit to do it. Then I titrated the amount of alkali
that was used up to these gases, understand, and I got a
certain acidity then.
Q. What acidity?
A. I don’t remember now. Then I titrated with the deci-
normal] potassium permanganate.
Q. The formula?
1110 LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A.
A. KMn04, and I found that I used a certain amount of
this permanganate, hence it acts upon the N203 or potassium
nitrate or sodium nitrate as I had it in this alkali to form the
nitrate—
Q. What nitrate?
A. The nitrate of sodium in that case, of course I used
caustic soda, and from that the total acidity, and from the
amount of permanganate necessary to raise nitrous acid to
nitric asid I figured out the amount of N203 that would be in
that Alsop gas, and it was in the amount of 75 to 25 of NO2,
and I know NO2 as such does not act upon the coloring matter
at all, so it must be the N208.
Q. Did you titrate on the alkaline solution or acid solu-
tion?
A. Oh, I titrated on alkaline solution for the acid because
I put in enough in there to have it remain alkaline.
Q. You have given the full experimental method?
A. 1 have given sufficient amount so that anybody can
follow that out easy enough.
Q. Where did you get the gas?
A. In our laboratory up in our milling room.
Q. An Alsop machine?
A. We have an Alsop machine.
Q. How far from the flaming are did you get the gas?
[—] I got that after it goes through a big tank.
«). How far from the—
A. Oh, I should say probably 4 to 5 feet from the machine,
but the gas goes through this tank.
Q. How long after it left the are?
A. As soon as it would commence to come through with the
blower, we took it just as it came through.
1505 Q. What was the concentration?
A. I don't know that, I have never estimated the con-
centration; I don’t remember that now, I don’t remember.
Q. You could not have forgotten it if yeu never knew?
A. Well, I don’t remember, I may have taken the concen-
tration of it, and I don’t remember as I ever have, but I took
the gas that blew through, and collected it for a certain num-
ber of seconds or minutes in this alkaline.
Q. You got an Alsop bleacher in your laboratory?
A. I got an Alsop bleacher up there in the mill, it is a small
one for experimental purposes, just te study this process, the
chemical action that takes place.
Q. You testified for the Alsep people in various litigation
in fact?
A. I have only testified once for them and that is in their
patent suit against the Naylor & Girard.
LEXINGTON MILL AND ELEVATOR 00. VS. U.S. OF A. 1111
Q. Ycu did not go to North Dakota for the Russell Milling
Company when they sought to enjoin Prof. Ladd from enforc-
ing the pure food laws of that State against the Alsop bleacher?
A. I did not go up there because I was in the hospital with
appendicitis at that time.
Q. You say nitrogen peroxide does not attack coloring
matter at all?
A. Ihave not been able to prove that it does; I have tried
it in various ways.
Q. Does nitrogen peroxide attack any constituent of the
flours?
A. Ihave not been able to determine that point.
Q. Does nitrogen peroxide attack the flour making the
zantho proteic compound?
A. Why, it would, of course, if you pour it on, any perox-
ide would attack flour if you pour it on the flour.
Q. Does nitrogen peroxide made by the Alsop bleacher in
certain quantities produce the zantho proteic compounds?
A. It may, providing you would run the flour through the
agitator about 500 times.
Q. Or keep it in it? A. Or a thousand times.
Q. Now the bleaching time is half a minute?
1506 A. To yo through the agitator?
Q. Yes, for one bleaching? A. Probably that.
Q. How is that?
A. 1 presume probably that much, yes.
Q. Five hundred minutes then, less than nine hours, would
be the equivalent to putting it through there a thousand times?
A. I did not get that last.
Q. I-say if you kept it in there about 500 minutes then ac-
cording to your figures would give the zantho proteic reaction?
A. Well, if the flour was kept in constant agitation it is
liable to.
Q. Is it necessary in order to get the NO2 made by the
Alsop machine to keep the flour in censtant agitation?
A. That is the quickest way of course, to bring about
bleaching.
Q. If it adhered to the walls of the agitator it would not
take it? A. It would not bleach it.
Q. Well, it would not take xantho proteic reaction?
A. Why, it might in time if there were sufficient moisture
there; of course, you would have to have moisture with that,
to bring about that, you know.
Q. Now in order to bleach it by the air would you have to
keep shaking it too, or is that a different action in the air that
will bleach without shaking?
A. Well, if you simply run the flour through a sort of a
cyclone bolter about 4 or 5 times you bleach it just as quickly
Oe RE RE CE EO ERS Ma |
1112 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
almost, you would have to treat it with more air, take a little
longer, but you get the same results, and you could get the
same amount of nitrites or nitrite reacting material in there,
but storing it you use the flour beds a good deal, and for that
reason it is difficult for the air to come in contact with the
coloring matter in the flour.
Q. So that as a matter of fact you don’t need any flaming
are at all, all you need is the pure, pure air?
A. If you want to use enough pure air, and in sufficient
quantity you would produce exactly the same result in regard
to bleaching.
Q. If there be no nitrites in the air will it do it?
A. If there. be no nitrites in the air it would be very
1507 doubtful whether that bleaching would take place, it is
not the oxygen, it is not the oxygen.
Q. Now zantho proteic reaction means the yellow action on
the protein? A. Yes, that has reference to it.
Q. Now the zantho proteic reaction means the yellow ac-
tion on the protein? A. Yes, that has reference to it.
Q. The more you say the stronger the yellow?
A. Up toa certain point, yes, I should say so.
Q. And the yellow begins to increase before you can ob-
serve it with the naked eye, doesn’t it?
A. I don’t know about that; I don’t know about that.
Q. If the testimony in this case is true that it does, that
the yellow begins to increase step by step with relatively small
amount of NO2 treating it, would you think that was the
zantho?
A. Yes, but I don’t believe vou would get that until vou
get free nitric acid there; I don’t believe you get that reaction
until you get free nitric acid.
Q. But you never experimented to see?
A. Well, that is the way the zantho proteic reaction usual-
ly works; you have got to take the free nitric acid as free ni-
tric acid; you get that point.
Q. I know that is the reason you are swearing that this is
N203?
A. No, Mr. Butler, I think your experts will agree that
the chemistry I have given you there, that that is sound, T am
sure they will.
Q. Now if there be a little NO2 [2] added to flour but not
enough to combine with all of the coloring matter in the flour,
is there any zantho proteic compound formed?
A. I would say not.
Q. Not even a trace?
A. I would say not even a trace as far as the zantho pro-
teic reaction is concerned.
Q. Yes, NO2 will combine with oil?
LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A. 1113
A. NO2 will combine with oil after a certain treatment
and a certain amount.
Q. It will combine with the gluten?
1508 A. After you get a certain concentration there it will.
Q. It will combine with the color?
A. NO2, when you say NO2, I always wish to be under-
stood N2038, I wish that always to be understood,
Q. Allright. Now assume that it combines with the color,
the color is the base? A. The color is the base.
Q. The oil isa base? A. The oil can act as a base.
Q. The gluten can act as a base, can’t it? A. Yes, sir.
Q. The proteins which includes the gluten? <A. Yes, sir.
Q. Now is there a law of chemistry to the effect that if you
add such a substance, such a radicle, in minute quantities, not
enough to saturate all the bases, that it will distribute itself
to the different bases, some going to the color, some to the oil,
some to the’ gluten and the proteids, is there any such law as
that in chemistry?
A. There is such a law in so far as it will go to that point
that has the greatest affinity and the coloring matter has the
greatest affinity.
Q. Is it a law that if there are several bases of different
degrees of affinity and the radicle be introduced which is not
sufficient to saturate any one, that it will all go to the one
having the strongest affinity; is that the chemical law or is it
the chemical law that it will combine with all of the bases
for which it has an affinity, depending upon the quantity of
the base and the strength of the affinity and the quantity of the
radicle used?
A. No, I believe that the law is that it will go to the one
with which it has the greatest affinity.
Q. No exception to that law that you know of?
A. There may be some exceptions but that is the general
law, I believe.
Q. That is the law? A. I believe so.
Q. That is the law of mass action, is it?
A. I don’t know whether you eall that mass action.
Q. There is a law of mass action?
A. Well, with certain reactions that took place, though
to be there a preponderable amount has got to be there, to
bring about a chemical reaction.
1509 Q. That is the law of chemistry?
A. I believe that is the law, yes, sir.
Q. Now you said the coloring matter yesterday was ter-
pene. I want to mark that down there so we won't misunder-
stand it at all, on this blackboard. T have learned that that
word is sometimes spelled “terpene”, is that the right way to
spell it? A. Yes, sir.
1114 LEXINGTON MILL AND ELEVATOR CO. YS. U. S. OF A.
Q. You told me the formula was what, I cannot remember
that? A. As I figure it out now it is C10H16.
Q. Did you tell that yesterday? A. Yes.
Q. C10H16, that is 10 of carbon and 16 of hydrogen?
A. That is right.
Q. That is terpene, that is the coloring matter in flour,
is it?
A. That is as near the formula as I can get now to ter-
pene, hypothetically it figures the C1OH16.
Q. The coloring matter in flour is yellow, is it not?
A. Yes, sir.
Q. Is the coloring matter of terpene yellow?
A. No, not the common terpene of nature, this is the new
terpene.
Q. It is a new terpene? I think the chemists, as laid
down by all of the chemical works in the German and in the
English language say that terpene is colorless, is it not?
A. Yes, sir.
Q. And it is laid down that lots of time it turns vellow,
rather rosin or resin, isn’t it, that is the learning on the sub-
ject, isn’t it?
A. As far as they know anything about turpene, that is as
far as they have gone in terpene, yes.
Q. Do you know anybody in the world except yourself who
ever went far enough to find the kind of terpene that is yel-
low until it takes on the reaction except yourself and your
associates in the Columbus Laboratory?
A. I don’t know of any one else that is investigating the
subject as we have investigated it with this particular color-
ing matter.
Q. So that you have discovered a new kind of terpene?
A. Yes, sir, and we are the first ones that has ever gotten
out the coloring matter of flour.
1510 Q. You discovered a new kind of terpene. Well, now,
let us see about this, gentlemen, Hoffman has written a
work on volatile oils, hasn't he?
A. I don’t remember his name.
Q. Well, isn’t he one of the most eminent living men on oils,
don’t you know that? A. You say so.
Q. Well, I don’t know.
A. I don’t think I ever read him on volatile oil, no, I have
not had any occasion to.
Q. Had no occasion to? A. I don’t think I ever read it.
Q. You are not familiar with it, so you don’t know whether
his work is any good or not at all?
A. Tam not familiar with his work.
Q. But he lays it down that terpenes are colorless oil?
LEXINGTON MILL AND ELEVATOR CO. Vs. U.S. OF A. 1115
A. I know they do, but here is one that has color, and
that is a new one, they didn’t know that such terpenes existed
in vegetable matter at all.
Q. Cushing, the same author that Mr. Elliott brought for-
ward yesterday or a few days ago, in his work on Pharmacology,
lays it down, does he not, that the terpenes are colorless?
A. I believe he does, that is true.
Q. And that after being kept volatile oils are generally
clear colorless fluids, some of them are green from the presence
of vegetable or small quantities of vegetable matters, while
others are blue? After long keeping they often acquire a yel-
lowish color and the acid reaction from the formation of resin ;
is that the truth?
A. That is the truth as far as those terpenes are [concern].
Q. As far as he learns?
A. In those kind of terpenes that would be correct.
Q. Now Richter’s Organic Chemistry, Volume 2, is that a
reputable work? A. Yes, sir, it is.
Q. [Is] is one of the best known in the world, isn’t it?
A. Very excellent indeed, sir.
Q. He says the true terpenes when pure are liquids,
1511 strongly reacting liquids?
A. As they get them out of oil of turpentine and the
citrus fruit too, that is as far as he goes, he don’t know anything
about the terpene in the flour.
Q. Many are oxydized by the oxygen of the air and they
manifest a tendency to solidify? A. That is true.
Q. So then until your researches all of the chemical learn-
ing on the subject was to the effect that terpenes were color-
less and by the lapse of time turn yellow, resolidify?
A. Yes, that is terpenes they get from the oil of turpentine
and the citrus fruit.
Q. When did you first report the discovery of a new kind of
terpene which starts up yellow and upon the lapse of time
loses its color? A. Oh, [have been working on that
Q. 1 didn’t ask you when you commenced working on it.
1 ask you if you reported it to the chemical world?
A. LT have not reported that as yet, sir. I would like to fin-
ish my answer, but T have indicated in several articles that I
have written, that we have identified this coloring matter or
have established a close relationship with it, but it was not
the province of this article to go into the nature of the color-
ing matter, and that that would be taken up ata later date.
Q. Did you ever write down on any paper or cause it to be,
or testify in any public place until yesterday, until today, that
you discovered a new kind of terpene which is naturally yel-
low, and if so where is it that we may see it?
ROE Ti st eh Na Sale cae a LAA EEL EEE NORE LEE ETD 8 On ee
1116 LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A.
A. I have never published it, but I have spoken about this
compound with Prof. Stiglitz, Professor of inorganic chemistry
of the Chicago University.
Q. Now when did you first make it public that you had dis-
covered a new kind of terpene which contrary to all the ter-
penes ever theretofore known was yellow instead of clear,
turned yellow instead of losing its color by the lapse of time?
A. I made it public, if you call this being public, yesterday.
Q. For the first time? <A. Yes, sir.
1512) @. When did you discover the fact—
A. That it was terpene?
Q. When did you discover the new kind of terpene that
started out yellow and loses its color, instead of starting out
colorless and taking on yellow as the other proteins, when did
you make the discovery?
A. I should say probably a year or possibly two years ago.
(2. Have you your notes from your experiments?
A. I think I could find them at home.
Q. Will you produce your original notes showing the de-
tails of your experiments by which you discovered the new kind
of terpene that is yellow to begin with, does not resolidify, but
loses its color as time goes on, will you produce those notes
for our examination?
A. 1 will try and find them and produce them if you wish
them.
At this point the further hearing of this cause was adjourned
until 2 o’clock p. m.
Pursuant to adjournment, court met at two o'clock p. m.,
Tuesday, June 21, 1910, and proceeded further with the trial of
said cause as follows:
Dr. John M. Wesner, resumed the witness stand.
The Court: Any further examination, Mr. Butler.
Mr. Butler: I believe not.
The Court: You may reexamine, Mr. Elliott.
1513 Redirect Examination
By Mr. Elliott:
Q. Doctor, I want you to explain to the jury, about the
yeast apparently generating nitrites, on the one hand, and
consuming them on the other hand. Now, take this Claimant's
Exhibit 227. I believe you have testified that the nitrates that
are in the water, are reduced to nitrites by the yeast. Is
that correct?
A. That is true.
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 1117
Q. And that, when the Griess reagent was put on there,
it gave the coloration. A. . That is true.
Q. Now, I will ask you this: assuming that you had al-
lowed the yeast to act on that for a longer time than you
did, what would have occurred?
A. The nitrite would have all been consumed by the yeast
cell. The nitrite produced from the nitrate by the yeast is
due to the enzyme, which each yeast cell contains, and this
enzyme, which is secreted by the yeast cell, acts upon the
nitrates, and makes nitrite. Then, the cell lives upon the
nitrite, as food.
Q. So that, in this exhibit, 230, we then have, in this color-
less fluid, as I understand it, an illustration of where the
yeast has consumed the nitrites.
A. That is true.
Q. Mr. Butler put to you several questions, in relation to
doses of nitrites. T want to ask you what relation, in your
judgment, these medicinal doses of nitrites have to any sub-
stance in this flour in suit.
A. No relation whatsoever.
Q. I will ask you if you ever saw any flour that had been
made yellow by being treated by this Alsop process.
A. No flour that has come to the Columbus laboratory
for examination has ever been yellow, or made yellow by the
gases from the Alsop process.
Mr. Butler: I move to strike out the answer as not re-
sponsive.
The Court: That is not the question, Doctor.
1514 Mr. Elliott: I will repeat the question.
Q. My meaning is this: there has been some testi-
mony that flour remaining in these agitators, after exposure
for some length of time, turns yellow. Now, Tam net deal-
ing with that. IT mean flour, as it has been passed through
the agitator, as it is treated in the mill. Have you ever seen
any flour, so treated, that was turned yellow by this Alsop
process? A. I have not.
Q. I will ask you, Doctor, if, in determining the question
of the poisonous properties of a substance, if you are influenc-
ed in coming to a conclusion, by the fact that such substance
occurs normally in the human body. Would that be one of
the factors?
A. That would be one of the factors to consider.
Q. Now, Mr. Butler made some remark to you, in refer-
ence to this corn starch case, that has bobbed up here once
or twice, to the effect that you were fighting the commonwealth
of Pennsylvania. [ will ask you if De. John Marshall, who
PITS EN NY SEY PE ae ee ae FATAL S IAS RAPS NRE EE
1118 LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A.
testified for the government testified on the same side of the
case as you did, in that case. A. He did.
Q. I will ask you, as long as the subject has been brought
up, if it isn’t a fact, as a result of the testimony brought out
by the defendant in that case, that the attorney for the state
himself asked the court to direct the jury to bring in a verdict
for the defendant.
Mr. Butler: Just wait.a moment. That is objected to as
not proper examination, and especially for the reason that
it appears that the question of injuriousness of nitrites was
not up, and Marshall expressly said that he declined to testify
in that case, at all, because he thought they were injurious.
Now, they happened to be on the same side, but the result
of that case, would not be material; and I further object to
the assumption that I said that to Mr. Wesner. He plainly
said that he was fighting the commonwealth of Penn-
1515 sylvania.
The Court: Oh, I recollect very well what Dr. Marshall
testified.
Mr. Butler: He injected that. He injected Marshall.
The Court: Dr. Marshall told us expressly what he testi-
fied to there, and that he would not have testified to the con-
trary to what he testified here.
Mr. Elliott: I am not bringing that out, for a moment.
The Court: Well, just a moment. You might just as well.
Then, if you ask this question, we have got to investigate the
issues upon which that case was tried, and then determine
whether it was decided right or not. There is no such issue
there, as here. This objection is sustained. No such issue
there, at all.
Mr. Elliott: Your Honor did not give me an oppertunity
to say a word.
Mr. Scarritt: I want to make this objection, if Your Honor
please. The question was, to Dr. Wesner—
The Court: (Interrupting) The question is that Mr. EI-
liott is seeking to get this jury to believe that the govern-
ment was defeated in Pennsylvania, and, therefore, this jury
ought to so find.
Mr. Elliott: Not at all.
The Court: Well, just a moment, please. This question is
very objectionable, offensively so. Objection is sustainea.
.
LEXINGTON MILL AND ELEVATOR CO. VS. U.S. OF A. 1119
Mr. Scarritt: We object and except to the remarks of the
Court, and except to the ruling of the court.
The Court: We are not going to try such a fake issue
as that.
1516 Mr. Scarritt: He asked him, if Your Honor please, if
he was not down there fighting the commonwealth of
Pennsylvania.
The Court: This objection is sustained. That is a false issue,
that that question would seek to raise, here.
Mr. Searritt: No doubt about it.
The Court: No such issue is before this jury.
Mr. Searritt: We did not raise it.
By Mr. Elliott:
Q. Doctor, in bread making, I will ask you, is acid formed
by fermentation?
A. Acid is always formed by fermentation, as a necessary
step in the process of making bread. The acid acts upon the
gluten, and gets the gluten in good condition, so as to make
a good loaf volume, and bring about a greater resiliency to the
gluten. Sometimes mineral acids are added, in order to
bring about this rapid change in the gluten.
Q. Now, I asked you, on your direct examination, as to
whether you had discovered or ascertained if any change was
brought about in any constituent of the flour, by this bleaching
process, and I understood you to answer no, and then Mr.
Butler read to you several quotations from things you have
said, or which was alleged you had said, in which you stated
generally, certain things. I will ask you if there is any incon-
sistency between those two statements.
Mr. Butler: That is objected to as incompetent and im-
material.
By Mr. Eliiott:
Q. I will ask vou to explain those two statements,
The Court: I think the question is just calling for an ex-
planation, about it. You may answer.
The Witness: Read the question.
1517 By Mr. Elliott:
Q. I will ask you to explain those two statements.
A. I find no inconsistency in those statements, the only
change, as I have said right along, of any constituent in the
flour which has been bleached, is in the coloring matter which
has been changed. The gluten, and the other constituents in the
aes 20 a SONS x tye ‘tess i
LETS RM LOT IND TE OLS S
SR Ne OG ee Meares PL Pe
Naor edna
a tac > iN Sati Ens he
1120 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
flour, are not changed. Of course, by passing flour through
an agitator, and air coming in contact with the flour, a certain
amount of moisture is eliminated, but that is not a change in
any constituent of the flour. That is simply taking out some
of the water. The only change is in the coloring matter, in
that flour.
Q. And in naturally aged flour, does the same change
occur?
A. The same change takes place,—loss of water, and the
change in the coloring matter, which is a change, of course, in
one of the constituents of the flour.
Q. I have understood from those quotations and excerpts
from remarks, or testimony you have given, that you are on
record as stating that bleaching produces the same change
that aging does. I will ask you if that is your present opinion.
Mr. Butler: We object to Mr. Elliott's recital of his inter-
pretation and understanding of the proof, and we object — to
that question particularly because it is leading.
The Court: Well, it is leading, but, nevertheless, he may
answer,
(Last question read by the reporter)
A. It is my present opinion.
By Mr. Elliott:
Q. Now, Mr. Butler has interrogated you in reference to this
flour that was exposed in your kitchen, and as to the possible
volume of air that was used, or that would be necessary
1518 to be brought in contact with that flour, to produce
four parts per million of nitrite nitrogen. IT want to
ask you how long did you expose that flour in your kitchen,
A. That one was exposed about two weeks. Two weeks,
and other flours that I have exposed for twenty-four hours,
have taken up as high as one part nitrite nitrogen in a million.
Q. You were asked about ammonium nitrite. I will ask
you if, in your opinion, there is any ammonium nitrite in flour.
A. Not as far as I know.
Q. Is ammonium nitrite a volatile substance, easily volatile,
or not?
A. No, it is not very easily volatile. It is a solid, at a low
temperature, and a liquid at other temperatures, I believe.
Q. Now, I understand from Mr. Butler, he has been trying
to bring out by you and other witnesses that this process: in-
troduces a poison into flour. Now, I will just ask you to
assume that it does, and, on that assumption, I will ask you if,
in your opinion, nature, on exposure of the flour to air, would
introduce the same substance into the flour.
D RAT a, Ree Oe ts bs
LEXINGTON MILL AND ELEVATOR CO. VS. U.S. OF A. 1121
A. It certainly would do that, or does do that.
Q. You have also been interrogated at length in reference
to the presence of poisons, in this N203 material, in the gas
of the Alsop machine. I will ask you if it is a fact, well known
in chemistry, that two substances may be together in what is
called a state of dissociation. That is well known, is it?
A. Yes, sir.
Q. Take this nitrous acid gas. I will ask you if that has
ever been isolated, as such. A. Not to my knowledge.
Q. Now, I want to ask you to further assume that the air
passing through this Alsop machine, and treated by this
electric discharge, is, or contains a poisonous gas. Just as-
sume that. Does that fact have any bearing on the poisonous
character of any compound or substance which may be found
in the flour, as result of treatment with that gas?
1519 A. It would not have any bearing on any substance or
compound formed in the flour with this particular gas,
by the Alsop machine.
Q. Chemically speaking, would it be possible to take a
perfectly harmless gas, and treat this flour with it, and pro-
duce poisonous compounds in it, on dissociation occurring?
A. Well, I don’t know whether that would be possible or
not. It might be.
Q. I just say chemically,—theoretieally.
A. Yes, I would not say it would not be?
Q. Theoretically?
A. I would not say it might not be possible. It might be.
Q. And theoretically, it would be possible to take a poison-
ous gas, and have compounds from it, that were perfectly harm-
less, would it not? A. Absolutely so, yes, sir.
Mr. Elliott: I believe that is all.
Recross Examination
By Mr. Butler:
Q. What harmless gas will poison flour?
A. I do not know of any, right off-hand.
Q. What poisonous gas will not poison flour?
A. Well, N208.
Q. That is a poisonous gas?
A. That is, in sufficient concentration, it is a poisonous gas,
but, in mild concentration it is not that. That would produce
a harmless compound.
Q. What other poisonous gases will not poison flour?
A. Well, chlorine gas, in concentration, is a poisonous gas,
but, in a diluted condition, it would not be a poisonous gas,
3533-3534
SHINN TOR RCIY TOS PANY HIRE ST CORSETS RD THIELE TR OTE Na
1122 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8S. OF A.
and that, however, would also make a harmless compound with
the coloring matter of the flour.
Q. Can you name a poisonous gas that will poison flour?
A. I cannot, no.
1520 Q. So, no poisonous gas will poison flour, but harm-
less gases will poison flour, but you cannot think of
which harmless gas will do it. Is that a fair statement of
your testimony?
A. No, I do not think that is a fair statement.
Mr. Elliott: I understood him to say he could not name one,
on the moment.
Mr. Butler: Well, that is what I say.
Q. What is the name of the enzyme in yeast, which reduces
nitrates to nitrites?
A. I do not know as that enzyme has ever been named, but
Professor Buckner, a German scientist, has extracted an enzyme
which will convert sugar into alcohol, and carbon dioxide,
without any live yeast cell figuring on the reaction.
Mr. Butler: I move to strike out the answer as not Tre-
sponsive.
The Court: Yes. That is not responsive.
By Mr. Butler:
Q. Do you know the name of the enzyme which you say
will reduce nitrates to nitrites?
A. I do not know the name, but I know it is the enzyme
in the yeast that does it.
Q. Can you cite me to any authority which says that en-
zymes in the yeast change nitrates to nitrites. I mean, any
published text book, or work. I do not mean anything that
some of these witnesses have gotten up, to advertise bleached
flour. A. I am the authority on that statement.
Q. You are the only authority known?
A. Yes. I can prove it to you, right here.
Q. I propose to take your word for it, if you say you are
the only living man who knows that.
A. I do not say I am the only living man, but IT am one
of the authorities, because I have proved it myself.
Q. All right. State in detail your proof, scientifically,
chemically, now, so that any chemist will know it, so we
will have another addition to the chemical learning of the
world.
1521 A. Thank you.
Q. To put along-side of the discoveries of the new
kind of terpene.
eae 4 SALAS I ee NRE 7 PND PLAT LID TY AMBER ER OER
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 1123
A. Thank you. You are very complimentary, and I as-
sure you I appreciate it. If you take the live yeast cell, and
grow it upon nitrates, it would reduce them to nitrites. If
you take that same live yeast cell, and stop its growth, with
chloroform, and add nitrates in there, the cell does not develop
any nitrites. It stops. The enzyme in that yeast cell will
change the nitrates to nitrites. That is pretty good proof.
Q. And the same cell will change, and will destroy the ni-
trites?
A. If the cell is alive, it will eat up the nitrites, or destroy
them. 1 think they feed on them.
Q. That is, this cell eats nitrites?
A. I think it is good food for the yeast cell.
Q. Is there any authority that you know of, aside from
yourself, which says that nitrites are, as such, consumed by
the yeast cell?
A. Well, I think if you will take the culture media, prob-
ably, of Louis Pasteur, you will find that the way he fed his
yeast cells—
Mr. Butler: (Interrupting) I move to strike that out as
not responsive to the question. e
The Court: No. Answer the question, please.
A. (Continuing) I do not know whether Louis Pasteur
said, as such, that the nitrites—or, said in so many words,
that nitrites were food for the veast, but I know he has fed mix-
tures of that kind, for yeast.
Mr. Butler: Wait a moment. I move to strike out the an-
swer, as not responsive.
Mr. Scarritt: I object to it being stricken out, if Your
Honor please, because it is responsive.
The Court: Well, now Doctor, go on and make your
1522. own explanation, and then go back to the question
which, to me, is a very simple one. John Smith, or
Richard Roe, wrote such a book, or nobody did. John Smith,
or Richard Roe is an authority for that, or they are not.
Mr. Searritt: Or somebody demonstrated it.
The Court: No, that is not the question. Some man liv-
ing, or dead is or is not an authority.
Mr. Scarritt: Well, the question is unfair, then, if it does
not include that, in the answer.
The Court: Well, let him say he cannot answer it.
A. (Continuing) T cannot say, in just so many words, just
now, Whether he did that exact thing, that yeast would live of
LEOGRLINA NL EN INTESTINE MY IE RO SA
—— <ent
PRT
1124 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
nitrites, but, I know that certain culture media used by Pas-
teur contain such body, and were put in there for the purpose
of feoa for the yeast cell, and now, whether he says, in so many
words, that those are foods for the yeast cell, I cannot say. I
do not remember. He may have said it. That is the best
answer I can give.
Q. Do you say that the yeast cells consume nitrites, direct-
ly, as such?
A. That would be my opinion, so far as I have gone in that
work, Mr. Butler.
Q. Do you say that to be the fact and truth?
A. I would not say that is the absolute fact, but that is my
opinion.
Q. You would not say that is the absolute, established
truth, would you?
A. I could not say that, because there might be some other
lower nitrogen compound formed.
Q. Do you know any man, living or dead, who has ever
said—I mean an authority,—who has ever said that the yeast
cell, directly consumes nitrites, as such?
A. T can only answer that as T have already answered it,
to vour first answer.
Q. Can you answer it yes or no?
A. T could not think of answering it that way, because it is
impossible. It is impossible.
1523 Q. Now let me see if I understand the situation. I
asked you if vou can name any man, living or dead, who
is an authority in chemistry, who has said, as a chemical truth,
that the yeast cell directly consumes nitrites as such, and
you say you cannot answer that question yes or no, do you?
A. Tanswer that question, now—TI do not reeall any at this
time, but I believe T could find some authority that would say
that.
Q. You cannot do that, now? A. I do not reeall any.
Mr. Butler: That is all, Dr. Wesner.
Witness excused.
John E. Burgner, called as a witness on behalf of the claim-
ants, being first duly sworn, was examined, and testified as
follows:
Direct Examination
By Mr. Elliott:
Q. State your full name. A. John E. Burgner.
Q. What is your occupation? A. Practical miller.
Q. At what place? A. North Platte, Nebraska.
Q. How long have you been a miller, Mr. Burgner?
A. Thirty-five years.
LEXINGTON MILL AND ELEVATOR CO. VS. U.S. OF A. 1125
Q. What is the capacity of your mill?
A. One hundred and fifty barrels in twenty-four hours.
Q. Do you use an Alsop bleacher in that mill?
A. Yes, sir.
Q. How long have you been using it?
A. It was installed in August of 1904. It will be six years
in August.
Q. Six years this coming August? <A. Yes, sir.
Q. I will ask you, Mr. Burgner, if you have ever
1524 noticed the color of the gas, or gaseous medium coming
from this Alsop machine. A. I have noticed the gas.
4). Have you ever seen any color in it?
A. Not that I could describe as color, no, sir.
Q. I will ask you if there is any pressure in any pipe com-
ing from this Alsop machine. A. Practically no pressure.
QT will ask you if you have ever smelled flour treated by
this Alsop machine, to ascertain if there was any odor in it,
and if se, with what results.
A. Lhave. IT have never been able to detect any odor in the
smell of the flour.
Q. Where is this Alsop machine located in your mill, with
respect to the agitator? How far from it?
A. About eighty feet.
Q. About eighty feet? A. Yes, sir.
Q. And what connects that with the agitator?
A. We have a two-inch galvanized iron gas pipe, wrought
iron, with the exception of about two feet of rubber hose.
Q. Now, have you made any change in those pipes from the
time that machine was first installed, up to the present time?
[Q}. We have not.
Q. Have you a sample of that iron pipe? <A. Yes, sir.
Q. Let us have it, please.
The witness produces a pipe, which is marked “(laimants’
Exhibit 240”.
Q. Twill hand you Claimant's Exhibit 240, and ask you if
that is a section of the iron pipe you referred to. A. It is.
Q. What part of the apparatus did that pipe come from?
A. It came out of the electrifying room, about eight feet
from the electrifying machine.
Q. About eight feet from the electrifying machine?
A. Yes.
Q. Do you use one of these tanks in yours?
A. Yes, but that is at the other end of the line.
1525. Q. This is between the electrifier and the tank?
A. Yes.
Mr. Scarritt: How long did he say that had been in use?
ETT ONS ONO PATE TEL
1126 LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A.
a
The Witness: Six years, in August.
By Mr. Elliott:
Q. Now, have you a piece of that rubber pipe you have re-
ferred to? <A. I have.
Q. Now it is suggested that | ask you if the other pipe, of
which that is a piece, as 1 understand it,—does that represent
the specimen? A. Yes, sir.
Q. And would that, to your own knowledge, represent the
condition of your pipes? A. Yes, sir, it will.
Q. Now, take this rubber pipe, which is marked “241°. 17
will ask you what part of the machine this pipe comes from.
A. That is in the electrifying room, adjoining onto that
short piece of pipe, which would be about four feet or six feet
from the electrifier.
Q. And tell me why you use rubber pipe, at all.
A. To comply with the insurance requirements, as a mat-
ter of safety, from carrying any electricity up the main pipe.
Q. How long has this rubber pipe, Exhibit 241, been in use?
A. It will be six vears in November.
Q. Now, I call your attention to some discoloration on the
outside of that pipe, and ask you if you can explain what that
is due to. A. I can,
(). What is it?
A. This is oil. That is located so it comes directly under
shaft, up here, and little drippings, up here, falls onto that.
Q. Now, the gas from the Alsop machine passes right
through this rubber pipe, does it? A. Yes, sir.
(» And has been doing it for—
A. (Interrupting) Will be six vears in November.
Q. I hand you a valve marked “Claimants’ Exhibit
1260 242", and ask vou to state what that is.
A. That is a valve that is used, about three feet from
the agitator, between the tank and the agitator, for regulating
the flow of the gas to the agitator.
Q. How long has this valve been in use?
A. Six vears in August.
Q. All of these three exhibits have been in use substantial-
ly six years?
A. With the exception of the rubber, that was put in in
November, later. When we first put the plant up, we put the
pipe solid, and the insurance inspector came along, and re-
quested us to put in that piece of pipe, in there,
—
Mr. Elliott: The exhibits are offered in evidence,
Q. Mr. Burgner, why do you bleach your flour?
A. To make it whiter, and gives better satisfaction to the
trade.
—
LEXINGTON MILL AND ELEVATOR CO. VS. U.S. OF A. = 1127
Q. Now, just explain to the jury what you mean by giv-
ing better satisfaction to the trade.
Mr. Butler: I think we will object to that as irrelevant and
immaterial, and move to strike out his answer,—that part
which says “Gives better satisfaction to the trade”; as not ger-
mane to any issue formed by the pleadings in this case.
Mr. Elliott: The Court, itself, asked a gentleman here,
“Why do you bleach the flour”, and I want to bring out from
this witness his reasons, if any.
The Court: He may answer that.
By Mr. Elliott:
Q. What do you mean by giving better satisfaction?
A. Well, I do not know that T can explain how it gives bet-
ter satisfaction, but it does. People getting it—
Mr. Butler: (Interrupting) Just wait a moment. T think
I will object to any hearsay narrative.
The Court: Oh, ves. We are not going into that.
1527 By Mr. Elliott:
Q. 1 will ask you if, in your judgment, flour is im-
proved by bleaching it, and if so in what manner,
A. From my judgment, it is, to the extent that it gives
them the same—puts it in the same condition that about ninety
days of natural aging does,
Q. Now, Mr. Burgner, suppose you should take — flour,
ground from a new wheat, and bleach that flour—that new
flour. Now, I want to ask you, how will that bleach flour, in
your judgment, compare, in quality, with the same flour that
might have been aged for, say ninety days, as you have ex-
pressed it?
A. It would compare very favorably. About the same,
Q. Now, before this flour is bleached, and when it is new,
is it usable? Is it satisfactory to use by the baker, or house-
wife? A. No, it is not,
Q. And, after it is bleached, what then? A. It is.
The Court: I do not want to be misunderstood about a rul-
ing a moment ago. Just let me ask a question,
Q. Do you brand your flour as bleached?) A. No, sir.
Q. Do you let the people know it is bleached?
A. Wedo. We do not in any manner conceal it.
Q. Well, common people, like myself, going to the grocery
store and buying it,—would they know it was bleached?
A. It does not say it was bleached on the sack.
Q. Do you advertise it as bleached?
1128 LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A.
A. No. I do not think we do.
Q. If it makes it better, why don’t you advertise is as
bleached?
A. Well, it has not been necessary to do it. The demand
for it is sufficient.
The Court: Go on,
By Mr. Elliott:
Q. Have you ever had any dough balls in your flour?
A. No.
1528 Q. Do you know what they are? A. I do.
Q. Have you ever had any of them in your flour?
A. I have never had any that was to be attributed to the
bleaching.
Q. No—TI just asked you if you had ever had any dough
balls in your flours, irrespective of bleaching, at any time?
A. No.
Q. What was your answer? A. No.
Mr. Helm: I did not get his answer.
Mr. Elliott: He said no.
Mr. Butler: He said no.
By Mr. Elliott:
Q. Now, I will ask you if you have made tests on bleached
and unbleached flour, by means of baking. A. I have.
Q. And, comparing the loaf made from an unbleached flour,
to a loaf made from the same flour, bleached, or from a bleached
flour. Tell me, first, if, in your judgment, there is any dif-
ference in the odor between those two loaves.
A. After they are baked?
Q. Yes. A. No. I never could detect any.
By Mr. Butler:
Q. No difference in the odor after baking. Is that it?
A. In the bread.
By Mr. Elliott:
Q. Is there any difference in odor, in the flavor of the
bread? A. Never could detect any.
Q. Is there any difference in the loaf volume?
A. I never perceived of any. I never weighed them, or
measured for that.
Q. You stated that there was no difference in odor, before
baking.
Mr. Butler: After baking?
aac E NETRA MATE PE TT TH ES PRN, SERINE RTT
LEXINGTON MILL AND ELEVATOR CO. Vs. U.S. OF A. 1129
By Mr. Elliott:
Q. After baking. Did you mean to imply by that, that
there was a difference in odor before baking.
1529 A. No, I did not.
Q. Now, do you eat this bread, from bleached flour,
yourself? A. I do.
Q. Do you use it in your family?
Mr. Butler: Oh, I think I will object to that as irrelevant.
Mr. Elliott: I think it is well enough to know that a man
has the courage of his convictions,
Mr. Searritt: That is the best test you can have.
The Court: No, that may or may not be so. 1 do not know
about that. I may have been drinking milk, for years, loaded.
Perhaps I have, but I am a tolerably robust man, yet. That
would not be proof that formaldehyde was not harmful. I
sustain the objection.
Mr. Scarritt: We save an exception.
Mr. Elliott: That is all.
Mr. Searritt: Now, I do not quite understand that, Does
your Honor rule that we cannot show that people use this
bread, and eat this bread universally?
The Court: Do you think, Judge, that [ ruled on that?
Mr. Scarritt: Well, Lam just getting at it.
The Court: I say, do you think I ruled on that?
Mr. Scarritt: That was my understanding of it.
The Court: Well, you are mistaken. This is soon after
dinner, you know, and the mind is not always active,
Cross-Examination
By Mr. Butler:
Q. Mr. Burgner, have you been a miller long, at North
Platte?
1530 <A. About nine years.
Q. How far west of the Missouri River is North
Platte?
A. About three hundred miles. In that neighborhood,
Q. What is the annual rain-fall of that country, do you
know? A. No, I do not,
Q. Well, I understand that, in some parts of Nebraska, far
to the west, the rain-fall kind of peters out, and is pretty light.
A. That is right, some years, and others, it is different.
This year, it has been heavier out there than it has in the
eastern part of the State.
i eieseecseenmeeinnnends DES as REE I SE ahh IRE
1130 LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A.
Q. But you are getting into the semi-arid region?
A. Yes.
Q. The North Platte region, I believe, is considered in the
semi-arid country. A. Yes, so considered.
Q. What horse-power do you use to make this bleaching
A. Ido not know. We have no indicator, to indicate it.
Q. What is the horse-power of the equipment?
A. Five-horse-power dynamo.
Q. And the capacity is one hundred fifty barrels a day.
A. Yes, sir.
Q. If you run twenty-four hours? A. Yes, sir.
q. About twelve barrels an hour? <A. No.
Q. About six? A. About six.
Q. About six barrels an hour, and you are equipped with a
dynamo of five horse-power, to make gas to bleach five barrels
of flour an hour?) A. Six barrels.
q). Six barrels of flour?
A. But we do not use all of that.
Q. No, but you do not know how much you use?
A. No, I do not.
(2. Do you bleach all ef your flour?
A. Wedo,. That is, all the patent flour. We do not bleach
the clears.
Q. Your clears contain such impurities that they cannot be
bleached and mixed with the patent. Is that it?
A. We do not mix them. We do not mix our clears.
153tL QQ. What percentage of clear do you make?
A. From about ten to fifteen,
Q. What brand do you sell it under?
A. We simply say no brand, or first clear. That is, it is
put into jute sacks, mostly that way, unbranded, and sold as
first clear,—clear flour.
Q. Did any of your customers ever come to you and ask you
to bleach the clear, for them, to see if it would improve it?
A. Not to my knowledge.
Q. Any of your customers, who are consumers, come to you
and ask you to bleach the patent for them, so it would make it
better? A. Who are consumers?
Q. Yes.
A. Well, supposing the buyers—the people,—the merchants
are, | would answer yes.
Q. Well, you would understand the difference between
a flour broker, or a flour merchant, and a consumer, wouldn't
you? A. Well, he is also a consumer,
Q. Now, except some one who was in the business of selling
flour, did anybody ever ask you to bleach the patent, to make
it better? A. No.
‘ RE IN ETERS Ee eM NSLS
Say
a
LEXINGTON MILL AND ELEVATOR CO. VS. U.S. OF A. 1181
Q. What proportion of the time do you run your mill?
A. Well, we do not run—lI stated that this machinery was
shut down for four months, when it was moved. It was moved
a half a mile. If was not in operation at that time, and it is
not run continuously. [t runs—it is in operation, perhaps
two-thirds of the time, in the day time.
Q. In the last five years, have you averaged two-thirds of
the time—that is sixteen hours out of twenty-four, on — the
average?
A. No, I said two-thirds of the day time.
Q. Two-thirds of the day time? A. Yes,
Q. That would be about thirty per cent of all the time?
A. LT presume it: would,
Q. Wouldn't it?
A. LI have not put it into percentage, in that way.
1532. Q.) What was vour annual output, in barrels?
A. I do not know, now. [I have not the figures with
me,
Q. You haver't the figures with you? A. No, sir.
Q. How many barrels of flour did this pipe, which is mark-
ed “240°, conduct the bleaching gas for?
A. LT could not answer that, definitely.
Q. Have you any pipe bere, that was near the agitator?
A. That valve was near the agitator.
. How near the agitator? A. About three feet,
(). About three feet trom the agitator? Are you interested
in the Alsop Company? A. No, sir.
Q. Now, let me understand. Could you stop bleaching, if
you wanted to, without tearing down your mill?
A. Without tearing down the mill?
QM. Yes. A. In what way do you mean?
Q. Dismantle vour mill. Somebody told this jury — they
would have to dismantle the mills, to stop bleaching. Is that
right? A. Oh, no,
Mr, Searritt: [T object to that, if Your Honor please, there
is no such evidence as that, at all, and ask that it be stricken
out,
Mr. Butler: Didn't counsel tell that to the jury?
Mr. Searritt: You said it had been testified to,
Mr. Butler: No, T said somebody told this jury that.
Mr. Searritt: Well, vou assumed that some witness had
told them.
Mr. Butler: No, I did not. Counsel told the jury that they
would have to dismantle the mills, to stop bleaching. T want to
find out if this is true, according to this man’s experience.
—— . - , - ae ARNE = neon pike FYI OGY TESS
ee ee he A y s . . ve
1132 LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A.
The Court: He may answer.
By Mr. Butler:
Q. Is it? A. No.
1533. Q. All you would have to do, is to stop your gas maker,
isn’t that all? A. Take the belt off.
Q. That is all you would have to do, take the belt off, and
save the power consumed in making the gas. Isn't that true?
A. Yes.
Q. Can you give this jury any idea of how many barrels
of flour were bleached by the gas that passed through that
rubber hose, which is marked “241°?
A. No, I could not. That is, no definite answer. There was
two years that the mill ran sixteen to eighteen hours a day,
steady.
Q. Now, have you found ont that there is some heat
generated by this flaming arc?
A. Yes, there is some heat.
(). Have you found out that the air and gas, mixed to-
gether, When it is going through the hose, is hotter, and drier,
than it is after it has been through the holder, and going for
eighty feet to the agitator. Have you found that out, vet?
A. Yes, it is a little warmer.
Q. Have you found out, vet, that it requires water to make
nitric acid out of this gas?
A. T have not. Tam no chemist.
Mr. Elliott: I object to this, Your Honor, This witness
has not qualified as a chemist.
The Court: No, he does not know.
Mr. Butler: All right. He has not found that out, vet.
(). Before you get your bleacher, did your patent flour give
satisfaction? A. Fairly well.
Q. Well, what I am trying to get at, did it give satisfac-
tion?
A. Weil, the very fact that we put the bleacher in, is evi-
dence that it did not, fully.
Q. Oh, that is evidence? Well. Now, Mr, Elliott asked
you about new flour. Is new flour inferior fo what it: will
become if you age it?
A. It is not colored, as well.
Q. It is inferior, isn’t it, in bread-making qualities?
A. Yes.
1534. Q. When you age it, it gets whiter, doesn’t it?
i. Yes,
Q. Without bleaching? A. Yes.
Q. When you bleach it, you make it look like the aged
flour, don’t you? A. We do.
CEES AAS Sy reall ty BQ EE
a”
LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A. 1133
Q. You make your flour, made from the new wheat, that
has not been conditioned, look like flour made from the wheat
that has been conditioned, don’t you?
A. Make it work like it, too.
Mr. Butler: I move to strike out that answer.
The Court: Yes, that is stricken out.
By Mr. Butler:
4). You make it look like it, don’t vou? A. Yes,
Q You make a long patent look like a= shorter patent,
don’t you? "
A. Not by the aid of the bleacher, necessarily, ne.
(). A long patent is darker colored than a shorter patent,
isn’t it?
A. Well, sometimes. That depends, altogether on the skill
of the miller, and the equipment of the mill.
Q. Well, usually, isn’t it? A. Yes, usually.
Q. So that, by a blast of this air, from this gas generator,
you can reduce the color of that, somewhat, can’t yvou,—of
your long patent,—-and make it whiter? A. Reduce the color.
Q. Yes. When IT say reduce the color, T mean make it
whiter. A. That is what we bleach it for.
Q. That is what you bleach it for, isn’t it? A. Yes, sir.
Q. And you can adjust that, the more you bleach it, the
whiter it gets, until you ruin it, doesn’t it?
A. I could not answer that.
Q.. Haven't vou found out, vet, that the more gas you use,
the stronger it will bleach?) A. T have never ruined any.
Q. Oh, no, but you have found out, havent vou, that a
little gas will bleach a little, and more gas will bleach a little
more, and so on. Have you found that out?
A. To a certain extent, ves.
15385) Q. So that the miller may adjust the shadings of his
color, to a certain degree, by this bleaching?
A. To a certain degree, ves.
Q. That is what vou bleach for, isn’t it? A. Yes,
Q. And it often becomes a matter of great delicacy, does it
not, to determine just what shade of color it ought to be
bleached to, and in order to do that, you have to slick it down,
and compare it with the unbleached flour, or some standard,
don’t vou? A. T have never had that experience.
Q. That has not happened in your mill? A. No.
Q. Some wheats make lighter flour than others?
A. Yes, sir.
Q). And, if vou take a wheat that makes a dark colored
flour, and bleach that flour, vou can make that flour look about
1134 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
as light as the flour made from the other wheat, which makes
the lighter flour, can’t you, in color?
A. State that question again, please.
Q. I will try to state it a little more clearly. Let me ask
you this question. Do you know yellow berry? <A. I do.
Q). Does that make as white a flour as the turkey red, that
has no yellow berry in it? A. No.
Q. So, then, let us take yellow berry. It makes a little
darker colored flour than the wheat that is free from yellow
berry, doesn’t it,—wheat of the same kind?
A. Well, that is absolutely free?
Q. Yes, that is what T mean. <A. Yes,
Q. Now, if vou make tlour from yellow berry, vou bleach
it, and it gets white, too, doesn’t it? A. Yes,
Q. <And, if vou bleach it just right, vou can make it like,
or very near like flour that is free from yellow berry—flour
made from wheat free from yellow berry, can’t you?
A. Yes, I think IT can.
Q. So that, generally speaking, this bleaching may be so
used as to make the flour from new wheat look like the flour
made from old wheat; make the flour made from yellow
1536 berry look like the flour made from wheat free from yel-
low berry. Am [I right? A. Yes, sir.
Q. And generally speaking, to use Dr. Wesener’s expression,
it standardizes the color, and makes the same color practically
all over, attach to all kinds of flour, made from varving kinds
and conditions of wheat. Isn't that true?
A. Ina sense that is true, ves.
(). Well, I mean in a sense, But, in the sense of color, that
is true? A. Yes.
Q. You do not mean to say that, of course, if you took this
Durum, that is used for macaroni, that you could make the
same kind of wheat flour, with the aid of the Alsop bleacher, as
they made from the nice, soft, winter, pastry flour-making
Wheats of Southern Missouri?
A. I do not know. T[T never ground any,
4). You do not think vou could do that, do vou? You could
not make the same texture, could you?
A. T never tried it. T never ground any Durum wheat.
(). It does not change the texture of the flour, does it?
A. What?
Q. This bleaching gas,
A. T have never found that it did.
(). All vou have been able to discover about it is, that it
changes the color?) A. And makes it work better.
Q. Makes it work better? Well, makes the loaf volume big-
ger? A. Not necessarily.
Q. No, but as a fact.
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 1135
A. It makes a more tlaky loaf, to my mind.
Q). Better flavor?
A. No better flavor. No difference in the flavor
Q. Do you smell this gas’ Mr. Elliott did not ask you
that. A. Do L smell it?
Q. Can you smell it?) A. 1 can.
4. At the place where it is made, if you opened it, so
15387 it cam get out? A. Yes,
(). In the bleacher, where the flour is bleached?
A. Yen.
4). In the flour bin?
A. You can smell it if vou open the door of the flour bin.
(2. Now, what do you think it is? Domt you think that the
odor is in the flour? A. I do not.
Q. Well, now,.tell me how vou think that odor fills the flour
bin, without getting into the flour?
A. The flour fills part of the bin, and the space between the
flour and the top of the bin, is an air space, and the odor that
is from the gas, rises out of the flour immediately, and fills that
space.
Q. You are familiar with the smell of the gas that you get
at the agitator or at the generator?
A. More so, at the agitator.
Q. Because that can be opened, T understand? A. Yes,
Q. Now, is that the same kind of gas that ven smell, where
the gas is made—same smell, IT mean?
A. I could not answer that.
Q. You never noticed any diiference, did you?
A. Where it is made, it is piped through. There is no open-
ing in the pipe, and it is hard te get that, very often.
Q. You do get it, in the bin, every day vou go in there?
A. Yes.
Q. Now, is if the same sme! at the agitator, that vou find in
the bin? A. Yes, because they are very close together,
Q). Then, as T understand it, this flour, when taken in the
hands and brought to the nose, does not give off the odor?
A. That is my idea,
Q. But, when the bin is about full of flour, that mass of
flour, fills the rest of it? T do not mean more strength,
1588 but enough so vou can smell it? A. Yes, sir,
(. So then, it seems to vou, does it not, from yveur
practical observation, that this bleached flour, when found in
a large mass in a comparatively small bin, does give off enough
of this kind of gas that von smell in the agitator, so that vou
can smell it? A. Yes.
Q. So, vou would say vou would know, as a practical man,
observing this from day to day, that this bleached flour, when
REE acta
ee ae ee PRE POF F REISER SE LT Pe See E ENE aie
1136 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OBA,
~
*,
he
enclosed in a bin, does give off some small amounts of the
bleaching gas? A. In the bin.
q. In the bin? So that, if you would put it in a car, it
would give it off in the car, wouldn't it? I mean, if you filled
the car up and kept it tight?
A. If you would run it directly in the car from the agitator’
Q). Yes.
A. Perhaps it would, if it could not get away.
Q. Now you think it would not be strong enough to smell
it, out of the sack? A. Oh, no.
Q. So, vour idea is, that all of this gas escapes in the flour,
in the bin? A. That is my idea exac tly.
Q. And you know that it does escape?
A. I have never been able to smell any in the flour, and |
have made many tests.
Q. But you know it does ese ape in the bin, which is the same
old gas as you smell in the agitator? A. Yes.
Mr. Searritt: I object to that as repetition.
Mr. Butler: I wanted to be sure there was no mistake about
it.
Q. Did you ever try to bleach flour with the gas that is taken
from the bleached flour? A. No, sir.
Q. Now, did you ever take a sample of flour that was
1539 not bleached, and make a loaf of bread of it?
A. I did.
Q. Then, did you take the same flour, not bleached, and
wait for three months, and make a loaf of bread of that, and
compare the two? A. No.
Q. Did you ever make any similar experiment?
A. Thave baked the flour that was made—it was the same
flour, but not the identically same flour—at the end of three
months, and made the experiment.
Q. Does it make better bread at the ead of three months, if
you do not bleach it? A. It does, and it—
Q. (Interrupting) Makes a bigger loaf?
Mr. Searritt: Wait a minute. And what?
The Witness: What is that?
Mr. Searritt: You started to finish your answer.
The Witness: You asked me if it made better bread?
Mr. Butler: And you said it did,
A. T-said it did.
Q. Does it make a bigger loaf?
A. I don’t know as it does.
+9 dipgeoun ees ea
Ea
Es
LEXINGTON MILL AND ELEVATOR CO. VS. U.S. OF A. 1137
Q. Does it make a better flavor? A. No.
Q. In what respect is it better?
A. Just--whiter in color and lighter in texture,
Q. Yes? The gluten is better? The dough is better?
~ - Be doughs up better,
“Q. If you bieach flour, and bleach it good, so as to give it
a good, square bleaching, does it get better, on natural aging?
A. \How is that?
t, when you bleach flour it continues to improve,
just the sameas the unbleached flour does? A. It does,
So that\if you bleached a sample, and you keep it three
months, \longside of an unbleached sample, for three
1540 months, they will both improve, step by step, and week
by week, and month by month, for the three months?
A. That is my experience.
Q. That is your yxperience? Now, then, when you bleach
flour, it takes about thirty seconds to bleach it?
A. About fifteen. —
Q. Fifteen seconds? Does it improve the equivalent of
three months natural aging, as Mr. Elliott and Mr. Wesner
call it, the natural bleaching for three months—«loes it im-
prove in the fifteen seconds just the same?
A. That is my experience,
Q. So that you get a double improvement. You put three
months’ improvement on it in fifteen seconds, don’t vou?
A. We do.
Q. And then in three months more, by natural aging, you
put in another like degree of improvement on it, do you?
A. We do not have it then, usually.
Q. Well, I know, but if it keeps, somebody has it, if they do
not eat it?
A. If they don’t eat it, ves, if it is not consumed,
Q. Well, does the improvement begin on storage?
A. I said that it did.
Q. So that it not only improves when you bleach it, that
artificially changes it, in fifteen seconds, equal to three months’
time, but it improves some more? <A. Yes,
Q). Improves just as much in those three months’ time as it
did in the fifteen seconds?
A. T would not want to qualify as to that,
Q. Gets it away on and beyond, much better flour than if
it was not bleached at all? A. Yes. That is better flour,
Q). So that vou say that this artificial aging is better than
natural aging, because it improves it double the amount, don't
3533-3534
. *
TONER
1138 LEXINGTON MILL AND ELEVATOR OO. V8. U. 8. OF A.
you? First, it improves it three months in fifteen
1541 seconds; and then, in the three months’ time, it im-
proves just as much as the unbleached flour? That is
your say so about that?
A. I say that it improves it right along. The degree of
improvement, i cannot say.
Q. No, but as nearly as you can get at it?
A. I cannot qualify as to the degree of improvement that
it takes up.
Q. But, in other words, this bleached flour is made bet-
ter than the flour unbleached, of the same kind, would have be-
come by natural aging?
A. Well, I don’t know as to that. There may be a limit.
Q. a think there may be, about this bleaching?
. Yes.
Well, so do I.
Mr. Butler: That is all.
The Court: Anything further, Mr. Elliott, from this gentle-
man?
Mr. Elliott: Just one or two questions I want to ask him.
Redirect Examination
By Mr. Elliott:
Q. Where do you get your wheat?
A. In Nebraska, mostly.
The Court: Western Nebraska?
A. Well, some of it. We ship some from Central Nebraska.
By Mr. Elliott:
Q. What wheat do you usually get?
A. We get what grades No. 2 hard winter.
Q. Is that the wheat we have had testimony about here,
containing certain percentage of yellow berry? A. Yes, sir.
Q. Now, Mr. Butler has asked you to state, and you have
stated, that with this bleaching process you can make
1542 a new flour look like a natural aged flour, make it look
like it, and you said you could. A. Yes.
Q. I will ask you if it is like it, in your judgment.
Mr. Butler: Wait a moment. Now, he has testified that it
is, in his direct examination, I think, and what is the use of
repeating this all, over and over again?
The Court: He may answer it.
A. What was the question?
Q. I ask you if, as a matter of fact, it is like it, in your
judgment. A. In my judgment it is.
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 1189
Recross Examination
By Mr. Butler:
Q. By the way—yellowberry was mentioned in your re-
direct examination. Is that a diseased wheat?
A. No, sir.
Q. Is it better than the wheat that is not yellow, of the
same type? A. No, I don’t—
Q. Or, inferior to it?
A. I don’t know as it is necessarily inferior.
Q. Do you belong to this millers’ association that met here
yesterday and passed resolutions and things about yellow-
berry? A. I do.
Q. Now, that was spoken of, was it not, as the problem of
yellowberry ?
A. I went up to the meeting.
Q. All right. You cannot say, on that. Now, I want to
ask you this, whether or not farmers desire to avoid Yellow
berry ?
A. TI cannot answer that.
Q. Whether millers desire to avoid yellowberry, whether
it is considered an objection, an improvement, or indifferent?
A. Not necessarily so.
1543 The Court: Oh, well, is it? Nothing is necessarily so.
Is it better or worse, or the same?
Mr. Scarritt: Let him answer it, if your Honor please.
By Mr. Butler:
Q. That is what I am asking, is it better, worse, or the
same?
A. We prefer the darker wheat, yes, sir.
Q. You prefer the wheat that does not contain yellow-
berry?
A. Yes, if we could get it.
Q. Why?
A. Because the flour is naturally a little whiter.
Q. The wheat is a little harder?
A. No. I think the hardest wheat I ever ground in my
life, was the yellowberry. '
Q. It will make more flour per pound? A. No, sir.
Q. So it is just in the color? A. Yes.
Q. Well, when you have the bleacher there, you can boss
that color, can you, and you would just as soon [as] have
yellowberry? A. Not necessarily.
Q. With your bleacher you could get it on the same foot-
ing? A. On the same footing.
Q. That is what you have a bleacher for, isn’t it?
(No response).
*
.
1140 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
Witness excused.
W. D. Vodrie, called as a witness on behalf of the claimants,
being first duly sworn, was examined and testified as fol-
lows :—
Direct Examination
1544 By Mr. Elliott:
Q. Where do you live, Mr. Vodrie?
Omaha, Nebraska.
What is your business? A. Baker.
Are you a practical baker? A. Yes, sir.
How long have you been in this business?
42 years.
Have you a bakery in Omaha? A. Yes, sir.
What is the capacity of it?
About 2000 loaves.
POOP OoLOP
The Court: i suppose he means a day?
The Witness: That is the capacity, 2000 loaves a day. I
am not baking that much, at present.
By Mr. Elliott:
Q. Now, I will ask you if you ever had experience, Mr.
Vodrie, with bleached and unbleached flours, in baking bread?
A. Yes, sir.
Q. What has been your experience as to the working quali-
ties of bleached flour, compared with those of naturally aged
flours? :
A. Well, they are much about the same, excepting that when
the flour is new, the bleached flour works better.
Q. Without referring to any particular kind of wheat, I
will ask you this question: What has been your experience
as to the working qualities of bleached flour, compared with
those of naturally aged flours?
A. About the same, excepting the bleached flour is much
whiter.
Q. Now, take a new flour that has been bleached. Now
will such a flour compare, in baking qualities, with the same
flour unbleached. ;
A. Much better.
Q. To what extent, Mr. Vodrie, have you used bleache.
flour, during the past three years.
A. One time, that I know of, there was a man told me that
he had cut off some flour at a certain place; I don’t know,
put something in it.
Mr. Butler: TI will object to this as hearsay.
LEXINGTON MILL AND ELEVATOR CO. V8. U. 8. OF A. 1141
1545 By Mr. Elliott:
Q. You have not understood my question. To what ex-
tent have you used bleached flour, during the past three years?
A. Once that I know of.
You do not understand. A. Oh, bleached?
Bleached flour.
Why, I have worked it continuously for nearly three
"That was bleached?
Yes; the unbleached I have only worked once or twice.
Mr. Butler: The unbleached flour once?
The Witness: Well, I mean one lot.
Mr. Butler: That is what you mean?
The Witness: Worked a few days out of it.
By Mr. Elliott:
Q. Now, as compared with your experience with bleached
flour, what was your experience with the unbleached flour?
A. Well, I made very dark bread.
Mr. Butler: Well, wait a moment. I think I will object
to that comparison, as wholly valueless unless there is some-
thing besides bleaching shown, it may have been a poor mill-
ing.
Mr. Elliott: Yes, and maybe the flour that Mr. Freeman
spoke about was made from rotten wheat.
The Court: That goes to the weight of it. Bleached flour
may be very much better than some unbleached flour, and vice
versa. I do not know about that. At least, I am not saying,
go on.
The Witness: Well, the bread was very dark, and I lost
a good deal of trade by it; that is all I know.
By Mr. Butler:
Q. What is that?
A. I lost a good deal of trade by that.
1546 By Mr. Elliott:
Q. Have you ever had any trouble of any kind, aris-
ing from the use of bleached flour?
Mr. Butler: Objected to as irrelevant and immaterial.
The Court: What kind of trouble?
Mr. Elliott: In his bakery, I mean.
The Witness: No, I have not.
1142 LEXINGTON MILL AND ELEVATOR OO. VS. U. 8. OF A.
The Court: He can answer that.
By Mr. Elliott:
Q. Now, | want you to state if, in your experience, there
is any difference in the odor, between bread made from flour
that has been bleached, and bread made from flour that is not
bleached? A. No, sir.
Q. Is there any difference in the taste?
A. Not that I can detect, at all. That is what I am care-
ful about.
Q. I willask you, taking a case of an unbleached flour, have
you ever noticed any odor—and, by “odor” I mean unpleasant
odor—coming from such a flour, from the oven, and if so, to
what you attributed it.
A. You vill get that, with either bleached or unbleached
flour, if the dough is in a bad condition. It always makes the
over sour, and a sour smell comes out, in case any dough that
is over matured, it will be sour.
Q. It will give that smell?
A. Sour gas coming from the oven. I guess any baker will
know that.
Cross Examination
By Mr. Butler:
Q. Mr. Vodrie, are you interested in the milling business,
in any way? A. Not at all.
Q. Have you been a baker a long time, at Omaha?
A. Well, I have been a baker 30 years.
1547 Q. Are you alone in your business, or associated with
others?
A. Iam alone. I have had my daughter in with me, to
some extent.
Q. And the business is carried out under your name?
A. W. D. Vodrie.
Q. Whereabouts in Omaha is your place of business?
A. 213 South 20th.
Q. You were, then, quite familiar with the wheat flours,
before bleaching was practiced? A. I guess so.
Q. I understand it to be the truth that flours vary some-
what in color, depending on whether they are made a long pat-
ent or a short patent, or from new wheat, or conditioned wheat,
or from one kind of wheat, or another kind of wheat. Am I
correctly informed?
A. I do not know, because I know nothing about milling.
Q. Oh, you know nothing about milling?
A. Nothing at all about milling.
Q. Is it within your knowledge that a patent flour is gen-
erally and broadly speaking, better? A. Better, yes, sir.
Q. Is better flour than the straight? A. Yes.
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 1143
Q. That, I take it to be because of the color of it, and the
quality of the gluten, and gliadin in the flour?
A. No, I do not think so.
Q. Just the color? A. Let me hear that question, now?
Q. I say, I take it that the patent flours are superior flours,
because of the quality?
A. Superior because I guess it is—
Q. (Interrupting) The quality of the glaten and gliadin?
A. Yes, a short patent is better than a long patent, yes.
Q. A short patent flour is, as a rule, if it is made from the
same wheat, somewhat lighter in color, than a straight flour?
A. I know too little about that.
1548 Q. That would not be within your knowledge, but you
know it makes better bread? A. Yes, sir.
Q. You know it makes better bread than the clear flour?
A. Yes.
. So, then, other things being equal, a short patent, down
to say 50 per cent, is a good deal better flour than a clear flour
containing only ten per cent?
A. I don’t know much about those per cents.
Q. How does it compare with the clear flours?
A. I have always found it better.
Q. And it is better than the straight flour? A. Yes.
Q. It is better than the 90 per cent patent?
A. I suppose so.
Q. Makes better bread, doesn’t it?
A. I think so. I don’t know just what. I told you I
didn’t know anything about those degrees of patent.
Q. Oh, no, I do not mean to bind you down to any per cent,
but a short patent, makes a better bread?
_ A. What millers term a “short patent”, always makes bet-
ter bread.
Q. Yes? It is a better colored flour? A. Yes.
Q. It is a better colored bread? A. Yes, a better color.
Q. A better grain, better mixture, better crumb, as they
call it? A. Yes, and a little richer taste, too, I guess.
Q. If you were just going on the color, the bread, perhaps,
will be as heavy, and all that, but it won’t have the same fine
touch, or taste, or color, or flavor, will it?
A. I suppose not.
Q. And that is true, in handling the doughs? You handle
them, yourself, or have, during your younger years?
A. I have handled them. I stand over it, and I know how
it is handled, all the time.
Q. Now, is it your idea that this bleaching makes a clear
a patent? A. Makes a clear patent?
Q. Yes.
1549 A. It makes a flour that is white; makes a white loaf
of bread, that the people prefer, to any other.
1144 LEXINGTON MILL AND ELEVATOR OO. V8. U. 8. OF A.
Q. Aside from the color, does this bleaching make patents
out of clears? Is it your idea that this bleaching makes pat-
ent flour out of clears?
A. I would not think so. I do not knov, anything about
that. I do not understand the bleaching process. I know with
bleached flour I get bread that satisfies my customers better.
They want the white bread.
Q. Now, when wheat is new, right from the harvest, the
flour is not quite so nice, is it?
A. It has been very poor, always, until the last few years.
Q. But, if it ages, it gets so you can work it?
A. Yes, after aging, it will get better, of course.
Q. Now, I understood, in your answer to Mr. Elliott, that,
taking flour that was new, but bleached—
A. (Interrupting) It works perfect.
Q. It would work just the same as the flour that was nat-
urally aged? A. Yes, sir, it will.
Q. But that it would be very much whiter?
A. I did not say very much whiter. I say the bleached
flour is very much whiter than the other.
Q. You said that bleached flour was much whiter than the
naturally aged flour.
Mr. Scarritt: No.
Mr. Butler: He did so say.
Mr. Scarritt: No,—than the other flour.
Mr. Butler: Is that the truth?
A. I said that the bleached flour, new flour, it would work
perfect.
Q. I am talking about the color. You said bleached flour
was whiter than naturally aged flour? A. Yes.
Q. Before bleaching came in, a short patent would be whiter
than the straight? A. Why, ves.
1550 Q. A naturally aged flour would be whiter than the
fresh flour, made from the wheat? A. Yes, sir.
Q. The straight would be whiter than the clear?
A. All new flours?
Q. All new flours.
A. The straight would be whiter than the clear?
Q. Yes.
A. Oh, you mean the patent would be whiter than the
straight?
Q. Than the straight, yes. A. Yes.
Q. And the straight whiter than the clear? A. Yes.
Q. Now, by bleaching it, the color does not indicate any-
thing as to whether it is a patent?
LEXINGTON MILL AND ELEVATOR CO. V8. U.S. OF A. 1145
A. All I know about it is making the bread. It makes the
bread whiter.
Q. And you know that the bleached flour is whiter than the
naturally aged flour? A. I suppose it is. I think it is.
Q. That is your observation?
A. Itis, now. You know, we are not working the same
flour. We are not using the same wheat that we did eight or
ten years ago—twelve or thirteen years ago.
Q. I was just coming to that. Where do you get your
bleached flour? A. I get it from the Skuyler mill.
Q. What brand is it? A. Puritan.
Q. Patent? A. Yes.
Q. How long have you used that?
A. I have used it for about—oh, I guess ten or twelve years.
I have used it, I guess, when a good part of it was ground from
spring wheat. It was then all right.
Q. Before it was bleached?
A. Yes, and I guess it had been bleached for several years
before I knew it was bleached.
Q. What was this unbleached flour that worked so badly?
A. It was ground in Lincoln.
Q. How is that? A. In Lincoln.
Q. In what season of the year did you get that?
A. I got that about three months ago.
1551 Q. Made from old wheat?
A. I suppese so. There would be no new wheat yet,
would there?
Q. And you say that worked very bad?
A. It made a very dark loaf of bread. Very dark, brown
loaf.
Q. Flavor was bad, too?
A. Well, I know customers said so. I could not say as to
that. I did not see the flavor. Of course, when a thing don’t
look good, it often tastes good, to their imagination.
Q. So, either from imagination or knowledge, the custom-
ers thought that this lot of flour that was unbleached—the
only lot that you have used of unbleached flour in four years,
made a very inferior bread?
Three years, I said.
Made bread very dark and unsalable for me.
And you lost your trade by it?
Yes, sir, I lost a good deal of trade by it.
Do you advertise?
I never advertise, only with the goods.
POPO> >
The Court: Sir?
A. I never advertise; the goods is all the advertising I have.
1146 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
By Mr. Butler:
Q. Do you, yourself, handle the dough, now?
A. I look after it, a great deal. I do not work in it, at all.
Q. You do not work in it at all? A. No.
Q. How long since you ceased to?
A. Oh, I worked in it, now and then, but I don’t make a:
hand, in the shops. Sometimes a man is sick, and I work,
Q. I mean, regularly. How long since you worked regular-
ly? A. About ten years,
. What was your daily output, ten years ago?
I could not remember.
About.
A. I think in the neighborhood of about 500 loaves of
bread.
Q. And it is about 2000 now?
No sir, you asked me my capacity.
Oh.
No, sir; my trade now is light. A little light.
. About how many loaves?
. Somewhere in the neighborhood of 700 a day. In the
winter, about 1000 to 1100. I have a hot bread proposition.
I sell more in cold weather than I do in hot.
Q. Hot bread?
A. Yes. I sell a good deal of hot bread. I bake often.
Q. You never were in a flour bin filled with bleached flour,
were you? A. Which?
Q. Were you ever in a flour bin that was filled with bleached
flour? A. No.
Q. So, y
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