question raised here for you to consider is whether the said drug contains poisonous ingredients of any kind. If you find from the evidence, beyond a reasonable doubt, that it did contain poisonous ingredients, whether taken in the doses named, whether they would or would not be harmful-if you find that the drug contained a poisonous ingredient-then your verdict must be guilty, because that is the plain issue. Of course, that you must find beyond a reasonable doubt.

The next point is: "Nor was said drug a harmless relief." I do not need to say anything in particular upon that point. That has been fully argued by counsel, and I can not go into the evidence. It is a question for you. Of course, if you find, beyond a reasonable doubt, any one of these points against the defendant, then your verdict must be guilty, whatever you may do with the others, because the law provides "in any particular." Now, I will say nothing further with regard to the "harmless relief" than to refer you to the evidence, which is in your own minds. I can not tell you what the evidence is. You have the right to carefully consider it, and it is your duty to carefully consider all the evidence bearing upon the point, and to determine beyond a reasonable doubt whether, in your judgment as jurors, the case has been made out by the Government beyond that reasonable doubt. If it has been made out that it is a harmful relief and not a harmless one, then of course your verdict must be guilty. If you do not so find upon that point, your verdict would be in favor of the defendant upon that point.

The next one is: "Nor did each ounce of said drug contain 30 per cent of alcohol." I do not think I need to say anything upon that point. The evidence you know. You know the evidence of the two who analyzed it, and you know what they said. I will merely read the prayer that was granted on that subject.

If the jury shall find from the evidence that the defendant's preparation in question contained 30 per cent of alcohol at the time of the manufacture and sale thereof, then they should find that he did not make a false or misleading statement as to the quantity or proportion of alcohol contained therein.

In this prayer the jury are instructed that under the law the defendant had the right to use in the manufacture of preparations common alcohol, which is considered to be a little more than 5 per cent water and a little more than 94 per cent pure alcohol; that is to say, alcohol composed of 94.9 per cent pure alcohol and 5.1 per cent water; and in determining whether the statements on his carton and label regarding the quantity or proportion of alcohol contained in his preparation were either true or false, the jury shall consider that 5.1 per cent of the alcohol he used, if they shall find he used common alcohol, was composed of water.

I think that those two prayers contain all that I need say upon that question. You understand the evidence.

There is one other prayer on the subject of alcohol. I will read that:

If the jury shall find from the evidence that the statement on the carton and label of the defendant's preparation concerning the quantity or proportion of the [6] alcohol contained in such preparation was a true statement of the maximum or the average quantity or proportion of the alcohol contained in his preparation. such statement was in conformity with the law, and his carton and label was not misbranded so far as such statement was concerned.

These three prayers cover all that is necessary for me to say on that point.

I will read the other prayers granted, first taking up prayer No. 2 for the Government:

The jury are instructed as matter of law that if they find from the evidence beyond a reasonable doubt that the defendant, Robert N. Harper, on the fifth day of August, 1907, or at any time between the first day of January, 1907, and the filing of this information, in the District of Columbia, did manufacture a certain liquid medicine or preparation, styled and designated Harper's Cuforhedake Brain Food" or "Harper's Cuforhedake Brane Fude," and did on the bottle, box, or circular thereof place the following statements, designs, and devices, or any one of them, "Cuforhedake Brane Fude," or "Cuforhedake Brain Food," that said drug contained no poisonous ingredients of any kind; "that said drug was a harmless relief; that each ounce of said drug contained 30 per cent of alcohol;" and if the jury find beyond a reasonable doubt that the word "Cuforhedake" means cure for headache, and that the said drug is not a cure for headache, or that said drug contains poisonous ingredients of any kind, or that said drug was not a harmless relief, or that each ounce of said drug did not contain as the maximum quantity 30 per cent of alcohol, or that all or any of said statements were in any way false or misleading, then they shall find the defendant guilty as charged in the first count of the information; and if they further find that the said defendant, Harper, did sell and offer for sale, on the day and days aforesaid, the said drug to Frank T. Stone and S. Stuart Poole, then they shall find the defendant guilty on the fourth count of said information.

The fourth count, I believe, is a charge of selling. One charge is for making in the District of Columbia, and the other charge is for selling a misbranded article in the District of Columbia. The two are to be considered separately. If you believe that he sold a misbranded article then you will bring a verdict on the fourth count. If you believe that he misbranded in any of the ways claimed by the Government, beyond a reasonable doubt, then you shall bring in a verdict of guilty on the first count.

There is one other prayer for the Government:

A false statement within the meaning of the act of June 30, 1906, is any statement that is untrue, erroneous, net strictly in accordance with fact, or calculated in any way to deceive; a misleading statement within the meaning of said act is any statement that may in any way tend to lead a person wrongly, or misguide, or lead astray or into error, or cause to mistake, or delude or deceive; and if the jury find that any of the statements charged as false or misleading in respect to said drug, from any point of view, or from any aspect considered, may in any way reasonably be considered untrue, or not strictly in accordance with fact, or calculated in any way to deceive, or lead into error, or cause to mistake or be deceived, then the jury should find that such statement or statements are false or misleading, and that said drug is misbranded.

In considering the expert testimony, a prayer was prepared, which was also read, but I will read it again:

The jury are instructed that the evidence of the expert witnesses who have testified in this case is to be received and treated by them precisely as other testimony. The weight to be given to it by the jury is to be determined by the character, the capacity, the skill and experience, the opportunities for observation, and the state of mind of the experts themselves, as seen and heard and estimated by the jury, by the nature of the case, and all its developed facts. [7] In other words, I charge you, in substance, that in testing the evidence of experts you have the right to consider whether they have shown sufficient knowledge, and to consider their conduct upon the witness stand, everything about them that has occurred in your sight, and everything that they have given upon the witness stand, for

you are the ones to determine the weight to be given to the testimony of experts or those who come to testify as experts.

The law presumes that a person charged with a crime is innocent until he is proved by competent evidence to be guilty. To the benefit of this presumption the defendant is entitled, and this presumption stands as his sufficient protection, unless it has been removed by evidence proving his guilt beyond a reasonable doubt. That, you gentlemen understand, has been charged you over and over again. The right of a defendant in a court of law in this country is that he stands before you as innocent until he is proven by competent evidence guilty beyond a reasonable doubt.

Here is another prayer granted for the defense:

The jury are instructed that under the act under which this information is filed the defendant is not required to state on the label or package containing the preparation in question any of the ingredients contained therein except the quantities or proportions of acetanilid and alcohol.

Whilst that is true, yet the statement upon the label of the proportion of those two ingredients, if there are other statements upon the carton or label, or other document a part of the carton, which are false and misleading, the fact of the statement of the two drugs would not take away the character of the misleading statements. For instance, the ordinary purchaser of such drugs at a drug store does not know the value or the effect of these several drugs, and if there is put upon the outside of the package the quantity of this drug, and at the same time a statement that there are no harmful ingredients in it, or no poisonous ingredients in it, the fact that the label would show that there was a poisonous or harmful ingredient in it, if such were the fact, would not remove the liability to a penalty under this law, because it is the ordinary purchaser that we are dealing with. The ordinary purchaser does not know, except in some few instances of well-known poisons, the nature of the various ingredients going into drugs. If there is that which is false or misleading upon any part of that which is sold accompanying the drug, he would be liable under the provisions of this act.

Here is a prayer granted to the defense which is somewhat on that line:

The jury are instructed that the purpose of the act of June 30, 1906, was to prevent the public from being deceived or misled in the purchase of drugs, and that the defendant can not be found guilty of misbranding his preparation unless on the label, bottle, or package of his drug he made any false statements or such statements concerning the same as would naturally and reasonably deceive or mislead or tend to deceive or mislead.

The jury are further instructed that in order to convict the defendant in this case of the offenses charged in the information, or either of them, they must believe and find beyond a reasonable doubt that all or some one of the alleged false or misleading statements are or is false or misleading in some particular.

Another prayer:

The jury are instructed that the burden of proof in this case is upon the prosecution, and before they can find the defendant guilty the evidence adduced must satisfy them beyond a reasonable doubt that the statements contained on the label or package of the defendant's preparation or the printed matter connected therewith or some one or more of said statements was or were false or is misleading.

That covers all the prayers.

Gentlemen, in considering this case, you do not want to take into consideration the position or standing of the defendant. Everyone that appears before the bar of this [8] Court stands on an equal plane, as far as the verdict of the jury is concerned. We are not trying Mr. Harper, the president of the American National Bank, or Mr. Harper, the president of the Chamber of Commerce; but we are trying here Robert N. Harper, a citizen of the District, and you gentlemen are sworn to try the case, standing between the defendant on one side and the United States on the other.

You have nothing to do with the question, as counsel have told you, of the penalty. You are here to determine the plain questions of fact that are presented.

If you find any one of the charges brought by the Government in the first count against Mr. Harper, although you may find him not guilty on all the others, any one of them would be sufficient and would require you to bring in your verdict of guilty, because if he is guilty beyond a reasonable doubt upon any one of the charges of false or misleading statements coming under the word “misbranded,” then he is guilty, because the law requires that when a man puts out to the general public a drug he shall put on that no statement, he shall put on that no label which is false or misleading in any particular. If you find that this has been done, that there is a false or misleading statement in any particular upon this preparation put out by Mr. Harper, then your verdict must be "Guilty."

If, however, you find that in no one of the points named has Mr. Harper made a statement which is false or misleading, then, of course, your verdict would be in favor of Mr. Harper and would be "Not guilty."

If you find him guilty upon the first count and find that he sold this article to the firm of Stone & Poole, then you would find him, in that connection, guilty on the fourth count. If, however, you find him not guilty on the first count, you must necessarily find him not guilty on the fourth count.

Mr. TUCKER. Has your Honor concluded?

The COURT. Yes; unless there is something that counsel wants me to say further.

Mr. TUCKER. What I want to say is this: Under the rule established by the Court of Appeals, where instructions are repeated in the charge of the court, it is necessary for the parties to reserve their exceptions again to the prayers, repeating their exceptions. I accordingly except, for the reasons I have stated, to the granting of each and every of the prayers granted on behalf of the prosecution, and to the refusal of the court to grant each and every of the prayers presented on behalf of the defense and refused, and to the modification of the court to such of the defendant's prayers as have been modified by the court; all on the grounds I have stated.

The COURT. There was only one, I think.

Mr. TUCKER. Only one, I think. I simply put it in the plural to

cover any possibility.

I also object and reserve an exception to the language of the court in the charge relating to the subject of dosage, and in instructing the jury, in effect, that they should disregard the dosage as prescribed on the label of the defendant's bottle.

I also object and except to such part of the charge as stated to the jury that the ordinary purchaser does not know the nature of the ingredients in drugs, as a rule, on the ground that that is a matter for determination by the jury.

The COURT. Gentlemen, take the case.

Motions by the defendant in arrest of judgment and for a new trial were severally made and overruled, and notice was given of appeal to the Court of Appeals of the District of Columbia. Subsequently the appeal was withdrawn.

SAVAGE v. SCOVELL.1

(Circuit Court, E. D. Kentucky, July 16, 1908.)

171 Fed. 566.

Statute of the State of Kentucky (Laws 1906, p. 282, c. 48) held not unconsti tutional as being in conflict with the Food and Drugs Act, June 30, 1906 (34 Stat., 768). It is valid as an inspection law, and not in conflict with the provisions of the said act of Congress.

In Equity. On motion for preliminary injunction and demurrers to the bill. Demurrers overruled.

COCHRAN, District Judge. This cause has been submitted on motion for a preliminary injunction and demurrers, special and general to the bill.

It is claimed by plaintiff that he is entitled to the relief he seeks because the article manufactured and sold by him is not covered by the Kentucky act involved herein. Laws 1906, p. 282, c. 48. He maintains that said act covers only that which is a food, and said article is not a food, but a medicine. I think the distinction between what is a "food" and what is a "medicine" is clear, and there can be no question that said act covers the former, and not the latter. A "condiment" is a food, and not a medicine. It is therefore covered by the act, and that by express terms, but the act is not prevented from covering that [567]2 which is a food because it is a medicine also. Conceivably an article may be a food and a medicine both, and that when used in the same way, i. e., when taken internally. Such an article is covered by the act notwithstanding its medicinal quality.

I have considered the evidence carefully and have reached the conclusion that the article of plaintiff's manufacture is a foodprobably it is better to say that it is a condiment-and that such is the effect of his representations and claims in regard thereto. Undoubtedly he claims it to be a medicine also, and it may be said that the stress of his claims lies here; but in a real sense it must be said to be at least a "condimental food," and hence that it is covered by the act. Plaintiff is in no position to complain of his article being treated as what he calls it. The evidence shows that his action. in naming it a food was not purely arbitrary, but based on reality. The act itself is not unconstitutional. It is an inspection law, and the States have the right to pass inspection laws. This is expressly

1 Not arising under the Food and Drugs Act, June 30, 1906.

2 Numbers in brackets refer to pages of Federal Reporter.