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241
[1904
whole question in this case is whether this article is made from spirit which is not derived
from wine." According to Dr. Teed's analysis, upon which this prosecution is founded,
and according to Dr. Teed's evidence, the sample from the bottle in question submitted to him
contained 60 per cent. of spirit not derived from the grape, and he came to this conclusion
mainly because he found that the spirit contained a small proportion of ethers—40.9 in
100,000 parts of alcohol. He had not taken out the proportion of the higher alcohols. To
Dr. Teed, the liquid was silent spirit mixed with a small proportion—probably one third—
of spirit distilled from the grape; and he formed the opinion that the greater part of the
spirit in the sample was derived from grain, because the secondarv or by-products of his
analysis were in much the same proportion as those given by the analysis of whisky, which
is a grain spirit. Mr. Vasey and Mr. Hewitt drew the same deduction from Dr. Teed's
analysis for much the same reason. Mr. Salamon, Mr. Hehner, Mr. Chapman and Mr.
Bevan were the analysts called on behalf of the Defendant, and their evidence came to this—
that if rectified grape spirit is mixed with a proportion of grape spirit the whole is brandy
and no one can tell, they said, whether the rectified spirit so used has had its origin in the
grape or not. It may be rectified spirit from almost any material, because all highly rectified
spirit — silent spirit — is analytically the same, no matter what its origin is, and that
being so, Dr. Teed could not say that the sample he analysed contained grain spirit or, in
fact, that it contained any spirit that had not its origin in the grape. They could none of
them say, assuming that there was silent spirit in the sample, whether such was derived from
the grape or from grain, or from what material. Their evidence came to this, that assuming
the sample contained a silent spirit, they could not say that it did not contain spirit derived
from grain. Mr. Hehner's evidence was specially material because he had analysed the
third part of the bottle purchased that had been left according to the Act with the Defendant,
and his analysis showed that the spirit contained even a smaller proportion of ethers—
32 in 100,000 parts of alcohol—than Dr. Teed's analysis showed. Mr. Hehner had taken out
the proportion of the higher alcohols which was 468 parts in the 100,000. He admitted that
the result of his analysis was as compatible with the spirit in the sample being a grain
spirit as with its being a wine spirit. The evidence of the analysts amounts to this. Those
called by the prosecution say this sample contains a proportion of spirit not derived from
the grape, those called by the defence say no one can say whether this is so or not, so they
cannot say that that the sample does not contain such spirit. Dr. Teed says the sample contains
grain spirit; Mr. Hehner says that his analysis of it is not incompatible with that being
so. Upon this point Mr. Merritt who shipped this article from France gave evidence to
the effect that he sold two octaves of brandy to the Defendant. The Defendant admitted
that the bottle in question contained part of what was in the two octaves sold him by Mr.
Merritt, after he had broken it down with 42 per cent. of water. Mr. Merritt is a brandy
merchant of great experience, and he said he depended on his taste to guide him in the
purchase of the article. He and some other merchants said that the taste of an experienced
merchant could be depended upon to discover whether the spirit had its origin in the grape
or not, and Mr. Merritt admitted that when he tasted the contents of one of the
octaves he formed the opinion that there was some grain spirit in it, and when he tasted the
contents of the other octave he formed the opinion that it contained some 30 to 40 per cent. of
grain spirit. Now I accept with some doubt that the opinion that an expert taster can tell
whether a liquor contains grain spirit or not. Taste I think is somewhat influenced by the
expectation of the taster. If Mr. Pheysey, who was a witness called by the prosecution, had
tasted the contents of the bottle in court and had said that in his opinion there was grain
spirit which he would have been expected to taste in it that evidence would have had little
or no weight with me. But I give more weight to Mr. Merritt's evidence, not because I
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