5534. Adulteration of tomato pulp. U. S. * * * v, 25 Cases of Tomato 
Pulp. Default decree of condemnation, forfeiture, 'and destruc- 
tion.     (F. & D. No. 7162.    I. S. No. 10934-1.    S. No. C-422.)
On January 20, 1916, the United States attorney for the Middle District of 
Alabama, acting upon a report by the Secretary of Agriculture, filed in the 
District Court of the United States for said district a libel for the seizure and 
condemnation of 25 cases of tomato pulp, remaining unsold in the original un- 
broken packages at Montgomery, Ala., alleging that the article had been 
shipped on December 1, 1915, by A. B. Kidwell & Co., Baltimore, Md., and 
transported from the State of Maryland into the State of Alabama, and charg- 
ing adulteration in violation of the Food and Drugs Act. The article was 
labeled in part: "Hartlove Brand Tomato Pulp. Made fiom pieces of to- 
matoes and trimmings. * * * Packed by Hartlove Packing Co., Balti- 
more, Md."
Adulteration of the article was alleged in the libel for the reason that it con- 
tained a partially decomposed vegetable product.
On April 25, 1917, no claimant having appeared for the property, Judgment 
of condemnation and forfeiture was entered, and it was ordered by the court 
that the product should be destroyed by the United States marshal.
CARL VEOOMAN, Acting Secretary of Agriculture.
On Judy 17, 191?, the United States attorney far tfee Easterns DMrict of New 
York, acting upon a report by the Secretary of Agriculture, filed is the District 
Couxt of the United States for said district .an ittforxnatioa against the Pai- 
nienal Chemical Co., a curperatSon, doing business at Brooklyn, N. ?., alleging 
shipment bj saM company, in violation of the Feed and Drugs Act, as amended, 
on or abeut October 4, 1913, and Maarch 21, 1914, from the State erf New York 
into the States of Massachusetts ami MinaaesotH, respectively, of quantities of 
an article labeled in part, " Pulraoiitol,'' which was misbraaded.
Analyses of samples of the article by the Bureau of Chemistry of this de- 
partment showed that it was essentially a solution in glycerol and water of 
sodium benzoate, potassium, guaiacol sulphonate (thiocol), and a little strych- 
nine, and eoksred with amaranth, a coal-tar dye.
It was alleged in substance in the information that the article la each ship- 
ment was iuista'anded for the reason feat certain statements appearing oa its 
Isrbel falsely and fraudulently represented it as a remedy for all pulmonary 
diseases and all ftarms of conscuniption, asd as- effective for improving nutritLoa 
and relieving night sweats, when, in truth and in fact, it was not. It was 
further alleged in substance that the article was misbranded for the reason that 
certain statements included in the circular accompanying the article falsely 
and fraudulently represented it as effective for preventing hemorrhages and 
breaking up all severe colds, as a cure for consumption and tuberculosis, and 
as a remedy for night sweats, when, in truth and in fact, it was not.
On February 8, 1917, the case came on for trial before the court and a jury, 
and after the submission of evidence and arguments by counsel the following 
charge was delivered to the jury on February 10, 1917, by the court (Ghat- 
field, J.) :
I think that the present case is in many ways one of the most serious and 
one of the most important matters which I have ever been called upon to 
submit to a jury. In the ordinary criminal case the question is whether one 
individual should be held to have been shown beyond a reasonable doubt to 
have violated something which Congress has said should constitute a crime, 
and the personal liberty or liability to a fine of that individual is the limit 
of risk in the particular case. In so far as the case may establish a doctrine, 
or in so far as the case may form an example, it may be used or not used--as 
the case may be disposed of if it is appealed or as Congress may legislate 
upon a matter of the same sort-when another case comes up. When a statute 
is passed it is made the law of the country, on which the act of one individual 
may be in a sense the test as to whether or not the opinion of a great many 
people or of a few people is correct, when the application of that test may mean 
the life or death, the health or sickness, of many people, and when you have 
the position of one man protesting for his ideas against the general opinion 
of those who are supposed to know about the subject. When a jury of 12 
men are called upon to consider whether or not the ideas of the man as against 
everyone else, or nearly everyone else, are correct, or when the jury finds 
itself in a position of considering whether or not the opinion of the world 
up to the present tfme is correct, you have a very serious subject to con- 
sider, and the court has a very serious duty in deciding just how the matter 
shall be left to you and just what shall be left to you.
Now the Supreme Court of the United States, in the case from which the 
district attorney has just read to you, said, that it had been decided in other 
cases that Congress by this statute deliberately excluded the field where there 
are honest differences of opinion between schools and practitioners. It said 
that the statute did not intend to invade the domain of speculation. The Su- 
preme Court has held in other cases that this statute, that the laws of the 
United States, do not attempt to decide whether or not a belief of one person 
or the belief of many persons is right, and that those laws do not bring 
up such a test in these criminal statutes.    If I may use a plain illustration,
I think if at the time that the whole world believed in witchcraft one person 
should have advertised something that contradicted the doctrine of witchcraft, 
the United States Government under the Constitution and under its method of 
enacting law as it exists at the present time would not allow a person'-s 
liberty to be brought into jeopardy under a criminal statute by the mere 
decision as to whether or not witchcraft was true or false. That comes in 
the domain of freedom of opinion or of belief. I am inverting the case be- 
cause now everyone believes that witchcraft does not exist, and .no person per- 
haps could be found that would oppose that idea.
In the case at bar it is the opinion apparently of the medical world generally, 
md of most individuals, so far as they have gained their ideas frona doctors 
'md from the investigation of the doctor's statements that have been made-it 
is the idea of the world that tuberculosis, as lias been stated, is a disease that 
comes from the presence of a germ or bacillus that is substantially always 
present and which may progress if circumstances give it the opportunity. Now, 
3 on iiave heard that it is not the general opinion that any particular medicine 
can keep away or remove this opportunity for these germs to develop in the 
lungs (because we are not talking about joint tuberculosis and other matters 
of that sort). You have heard from the testimony that if, according to the 
general opinion of doctors, after these germs have started their -development 
and have proceeded upon this awful course that Mr. France has tried to explain 
to you, which I am not even going to try to follow, if they have gotten to the 
point where a person would say that one lung was gone, whatever that means, 
then the general impression and opinion as indicated by the testimony of the 
witnesses, and what has been stated to you, of the world to-day is that no 
?medicine will either stop the going of the lung or bring the lung back from where 
it has gone, but that, as has been said, these germs may be stopped, that is 
arrested and stay inert or dead, whatever it may be, by certain treatment that 
-removes their opportunity to continue active. Now, when you are considering 
whether generally everybody is right and that the medicine does not actually do 
the arresting (and I think that Dr. Payne told you from his standpoint the medi- 
cine itself does not act like a policeman and cause this arrest), when you-consider 
that, and then attempt to determine who is right in forming an opinion and 
reaching a conclusion as to just what medicine may have to do with the con- 
ditions which will be present if fresh air and the proper amount of exercise, 
and the proper number of eggs and other food are taken-when you are con- 
sidering just what medicine will nave to do with the creation of these condi- 
tions, and just what medicine will not have to do with the creation of these 
conditions, and attempt to say whether one doctor is right In saying that yem 
should have two eggs, whether another doctor is right in saying that you should 
have no eggs, whether one doctor is right in saying you should have no medicine, 
and whether the other doctor is right in saying that you should have pulmonol 
with those things-these matters have nothing whatever to do with this case.
This is not a case in any sense where the practice of using nulmonol is in 
question. It is in no sense a case whether the Pulmonol Company should sell 
pulmonol. It is in no sense a question whether Dr. Payne should continue 
to prescribe pulmonol. We Itave nothing to do with whether he may convert 
everybody to his opinion. I can say to you, as a matter of law, that if Dr. 
Payne is right, we should help him convert people to that opinion; that if lie is 
right, and it is a matter of opinion, the whole world should agree with Jiina. So, 
I have let him put in the testimony. I have let Inm state these cases to you so 
that you should see that, viewing the facts and viewing ttke patients -and view- 
ing the situation, looking at it from Dr. Knopf's standpoint, looking at it from 
Dr. Payne's standpoint, there is a difference of opinion, as to which the two 
men may be as honest in their variances as may be and they may each believe 
absolutely that Hie other is entirely wrong. I do not mean entirely wn?ng, 
because they agree on some of the conditions, 'but I mean, wrong in saying that 
the other is on the wrong track. We can leave that all out of the case, but it 
was necessary to let that testimony in, to allow this situation, to get before y?u 
FO that you gentlemen, as jurors, would not be disposing of this ease on ,a ques- 
tion of opinion as to whether pulmonol may be a good medicine or not. So, as 
the Supreme Court has said, Congress recognizes that they would not decide 
between one form of religion and another, as to which may be the best-assistance 
to the doctor in administering medicine- It would not make any difference a;s 
to whether, so far as Congress was concerned, the man's wife is a Christian 
Scientist, or wiietner the man's wife is a Hainan 'Catholic, or a Presbyterian, or 
a Jew, so far as bis mental make-np is concerned.   If ne takes a dose of Egsona
salts his mental attitude may have something to do with the situation. The 
doctor told you there was a psychology in this, and if the man would have 
greater psychology if he goes to one church and thinks of it one way and have 
less psychology and just as much of Epsom salts if he went to another church, 
you as jurors can leave that out, because Congress has left it out and it is not 
in the statute. Congress, as the Supreme Court says, used the words in order 
to leave no doubt upon that matter, that the statement must be false and 
fraudulent. In other words, there must be intent to deceive people so as to 
make them engage in commerce-that is, spend money or the equivalent of 
money-because they are misled and deceived, and that brings me to this 
statute itself and to what this case is about.
Perhaps some of'you were here in some of these other cases that had to 
?do with foods. Some of you may have been here in ordinary negligence cases 
where you heard something about the regulation of interstate commerce. But 
bear in mind that this is a criminal charge. At the outset this paper, which 
has been called an information-you can see that there is much paper in it. 
It costs more than one sheet would, as you can see, and the price of that paper 
might cost more today than it did a month ago, but that has nothing to do 
witli this case-that information is merely a sheet of paper which notified the 
Fulmonol "Company that they were to be here, because a jury was going to 
listen to their case; and they are here and you are hearing the case, and you 
inujst judge the case only from the evidence that has gone to you in the case, 
using your intelligence and the knowledge that you have gained throughout 
your lives in passing upon that evidence. So the Government must present 
evidence or else, of course, there would not be any case. The Government must 
show what will satisfy you beyond reasonable doubt that the defendant has 
done what it charges or else you can not get to the point where you could 
render a verdict for the Government, and therefore, of course, I charge you 
that as this is a criminal matter that you must weigh everything that has been 
said so as to see if it was proven beyond reasonable doubt that the defendant 
-did that with which it is charged and which I shall specifically in a moment 
state. You have heard what does not ordinarily happen in a case. You have 
iieard a good many more witnesses for the defendant than for the Government 
in this particular matter. You must take into account not how many there 
were or how fast each one talked nor how many words they said, but take into 
account what they said which is material to the issue in the case. Consider 
bow they said it, who they are, what relation they have either to the result 
of the case, or to the subject matter, and use all that as light, just as you use 
their appearance and their intelligence and the way of saying things to throw 
light upon your minds in determining how much you believe, in order to decide 
of what you are satisfied as to all the facts as to the different things, and 
then see if those facts, that you find from the testimony, prove beyond reason- 
able doubt that the charge is made out.
This corporation, so far as >ve know anything about it, is supposed to be 
reputable. Its connection, you have heard, with the Salvation Army; that 
may be considered by you as something in their favor, as to honesty in their 
intentions, and, so far as you know anything about this company, consider 
whether their intent is to defraud. Doctor Payne has testified. He has told 
you he is the president; he has told you he is the medical officer; he has told 
you he is the salesman; he has told you that he does everything that is neces- 
sary for the company and therefore he has given you a chance to judge of the 
company's intent and its dealings in so far as he might advertise the drug of 
this company or the merits it had. So from that you can determine these 
questions of fact as to what their purpose, their knowledge, and the meaning 
of their acts are. And so you come down in this case to a determination not 
fcs to whether pulmonol is a good medicine, not to a determination as to 
whether one person is right in thinking that it will cure consumption, not to a 
determination as to whether other people are right in thinking that it has no 
effect upon pulmonary consumption, or that it has no effect as a tonic* You 
come down to a determination in no way of whether or not fresh air and treat- 
ment, without medicine, is the only specific. But assuming that people gener- 
ally and the public who buy medicine have been of the impression that tubercu- 
losis is to be treated only by fresh air and change of climate and food and care, 
then if a remedy is presented which it is said will cure tuberculosis^ and if 
that remedy is sold to them, and if they are thereby induced to purchase the 
remedy, you have to consider whether or not the statements upon the bottle 
.and upon the papers in the package in which it is sold, in the first place, accord-
ing to one paragraph of the statute, whether the package or label bears any 
statement, design, or device regarding such article or the ingredients or sub- 
substances
, contained therein which is false or misleading in any particular.
Now, this statute, as I have said, was passed by Congress because they have 
the power to provide police regulations as to the way in which goods shall be 
sent from one State to another. As to how one State shall deal with another 
in a commercial way, Congress has the power to decide what is good; that is, 
what will have a beneficial effect in this matter of police regulation upon the 
people of one State when they are dealing with the people of another, in the 
sense of regulating the goods that they may exchange. So that Congress can 
Ktop the transmission of opium from one State to another, if Congress reaches 
that conclusion. That is a police regulation. So Congress may legislate that 
liquor shall be stopped in interstate traffic. Congress has the power to say that 
pulmonol shall not be shipped from one State to another, if Congress reaches 
the conclusion that pulmonol shall be prohibited in its statute. But these 
statutes have not gotten down to that refinement. This general statute says 
that no food product and no drug shall be sent from one State to another which 
bears upon it a false label, or a label that is misleading -as to matters of fact, as 
distinguished from those purely of opinion, where it is made plain that it is 
opinion. You have heard them talk about codeine and derivatives of opium. 
If a medicine contains those derivatives and they are not stated, or if the 
preparation is incorrectly stated so that the label is misleading then Congress 
says that this shall not be sent from one State to another because 'those who 
purchase it would not know what they are buying. So under this first main 
section of the statute this defendant is charged with having on these ^two 
occasions, which are admitted, sent from the State of New York to another 
State packages of pulmonol that bear this language, which has been read to 
you, and the Government charges that some of those statements in there are 
false and misleading as facts as distinguished from opinion.
At the time when this law was passed, in 1912, apparently there was some 
necessity that came into the view of Congress for stopping the traffic in drugs 
where the statement on the label was not false as to the contents of the pack-' 
age, or not false as to what the package was or meant to be, but where the 
statements were false as to the effect of the package generally. The idea that 
Congress was considering was what is popularly known as the sale of patent medi- 
cines, or put-up drugs, as a matter of business where people buy them without 
knowing what they are. To come back to the illustration of liquor again. If 
an article was put out as a medicine and there was a statement that it would 
cure certain diseases, and if in fact it was a beverage which was furnished to 
people so that they thought it was a medicine, so that they either did not know 
it was a beverage or that they did not recognize its effect, and if that article 
could be shown to be sold because people would buy it to drink, and if it could 
be shown that it had no medicinal effect, then that article would come within 
the prohibition of this statute. Now, we might come to a long discussion as 
to whether alcohol and medicine had any medicinal effect. We will not discuss 
now whether a person might be charged with having misbranded an article 
because he said it contained 15 per cent of alcohol and the alcohol would help 
cure a cold, or a thirst, whichever it might be. That would be a matter of 
opinion. But if he stated that alcohol was a cure for baldness, or if he stated 
that the bottle of something or other was a cure for baldness; and all it proved 
to be was that it was good for drink, then it could be stopped under this statute.
Now, I am using illustrations that do not come very close perhaps to this, 
but I do not want to come too close, because I am going to leave the question 
to you. The question is what the effect of this particular article may be as 
viewed from the statement of facts, distinguished from those oE opinion. So 
in 1912 Congress, in order to reach the kind of cases that I have referred to, 
added the section that said if the label contained anything which was false or 
misleading-in fact that was already in the statute-and added this: If the 
package or label shall bear or contain any statement, design, or device regarding 
the curative or therapeutic power of such article, or any of the ingredients 
or substances contained therein, and if that statement is false and fraudu- 
lent, then it would be treated as constituting a crime, in the same way as 
before, when the statute said "if it contained misstatements of fact."- So 
that we have here a change, of course. If you find it proven beyond reasonable 
doubt that this label contains in it any statement of fact (as distinguished 
from a statement of opinion, or as distinguished from a statement of conclusion as
to the recovery of a pat "eat) which is- false, than it would be witMa. the saais part 
of the statute.. Then, if you should find that fee label contains any stateseea-t as 
to the eumtive or therapeutic effect-fcam oar standpoint therapeutic, and eara- 
iive are suMtaatially the same-and if that statement is sot ?&Ly false; that is, 
if yos find it is not hased on fact, hat if the persons who made- the statement 
knew or should hare known or naust have known that the &feateme?t was false, 
and if they put that there for the sake of giving ?ut a false stetemeat and of 
making a statement to people which would cause them to buy something because 
they did not know the truth, then that would come within the second portion of 
the law, and if the Government proves that beyond reasonable doubt, your 
verdict shtould be guilty.
Now, this- case, as has been said, is not a test as. to whether or not the 
Pulmon-ol Company can do business or whether it can sell this .medicine. It 
really is only a test as to whether er not the particular label that is upon the 
medicine at the present time is misleading and inteatioaally false and fraud- 
ulent, and whether it contains statements that are eoateary to fact. If so, then, 
itf proven beyond reasonable doubt that this was so, the defendant would be 
liable to the penalty of having t? correct its label so that no ome wsuld be 
misled in that respect, and be- punished in such a way as the court might see 
fit, according to the amount of intent in the misstatements that the package 
contained. It is for that purpose that Bar. Payne was notified b# the Depart- 
ment to tell them what he- knew about the contents of tbe article and the 
accuracy of the statements mpon the article. If there had been a pravMoa 
there that the liepid in that bottle was red, white, and blue in color, and it 
psoved to be all red, and Dr. Payne had gone down there asd they had 
said, " Why do you say it is red, white, and blue?" and he sa*d, " Well, 
it is. When you. rail it, it is first white, and then blue, and then red. I did 
not intend to give the impression that it was red, white, and blue all at ?nee," 
the Government would have said, " Well, yon sliould say it is first White, .and 
then blue, and then red, and as long as it is red it is m a condition in wi&ch 
people can take it." He could have rehraiided bis lahel ha that respect aad the 
Government would consider whether or not the company shou-M be prosecuted 
for the use of the previous label, or whether it was something that did not 
necessarily mean that a person should be charged criminally with having pat 
ont something that is feaudateat. Sor in that way this matter was called iat- 
diseussio*?. The situation behind it, as t? this disagreement between I>r. 
Payne astd the other doctors, as to his standing in this society -which is 1 ?-rated 
by physicians, and in which they attempt to regulate or coatrol the action of 
those who are practicing as doctors, let us entirely leave ??*& The spestiea 
whether ymi agree with them, or disagree with these, their Basetfe&ds, or their 
actions M dealing with some ?-Be who ru?s counter to their idea-s, has nothing 
to do with this ease, unless it affects the credibility of oae -of the witnesses, 
?r unless it shows interest or teiais on the part of oae of the witnesses s- 
that Ms statements here are not to be taken far their face value Y#u jury- 
men can weigh all those things so as to see whether a man is so certain that 
a 
.person is a wroagdoer that he wo&Ld not listen to anything properly that 
anight be said in the man's favor ?r might be true when said at>oa? a man. 
On the other hand, a man who is being criticized may feel that the others 
were wrong t? such an extent that he will not entirely give full -cesffisldeajatio/n 
to what a third party aaaay fee doing without havimg- the slightest interest in 
the difficulties between the first two.
So far as the Government is eonoer?ed, you may start with, the assumption 
that the district attorney, and ra this ease the Government, in presenfiag teas 
Question leaves to you in no way an opportunity er idea of sadisg- wTMh the 
ether doet?s or with I>r. Payne. That has nothing whatever to do with the 
is^-tfie. Whether the Department ?f AgrieutatBe leair&ed Br. Payae's analysis 
&nd suggested to the chemists that they look it over ?ad -see fcf titey eemlA find 
something they imA not found fegfo.se ims nothing whatever to do =wifeh ^whether 
er Bot the statement on the lasbel is all right; it eaaly Ms to d? -with ?whether 
or not the chemists, followed that suggestion. Yon have- s?th4ag to A& with 
the cpestion whether the ?fficess of the Gov?ram?&t W.&& ha\m beea attempting 
to help the other doctors and hm? Dr. Payne -Cyam -caii ?a? that they 
have beee sa misguided and feliuded taart they mse. not fear 4? OB@ set ?r the 
ether) ; but the thing for jmt to= consider is whe*h?F &e aot tbMr aeeuracy ?f 
?bservatasa in their am^ysis of fifee grodnofc is eorceet, as yoa have be?*d 
sffl tie? testsmeiaf, ^B# then eosaader whefther 'their ?salfa& is -eetrreet 'Smj 
have told you what is in the product   Then see whether this label contains
anytiiiag that is false, that is* in the senss of inaccuracy or misstatement as 
to what the medicine is made of or. as ta what it is. For msfcanee, if it said 
it was a solid and not a liquid you could pass, on that as a- question of fact. 
If it said that it was beneficial in. certain diseases, and. the bottle was. empty, 
vou could pass on it as to whether it would be beneficial to take nothing where 
they said you must take something. If. it were proven that the bottle con- 
tained merely water and they told you that the patient must take something, 
why then (unless they could tell you that this, psychology entered in so: that if 
they took sugar instead of medicine and the sugar was coated with pink, it 
would be healthful merely because the patient thought they were getting 
something) then you could take into account that the statement wouM be 
false,, when it claimed that the medicine was. healthful; but, if the statement 
is that this pink-coated sugar eantains quinine, and it does not contain it, then 
you have a question of fact.
You have got to be very careful all the way through heee to dispose ?n one 
side of all the matters of opinion and on the other side of all questions &t fact. 
Dr. Knopf has gone through this label and in response to my question has 
taken up clause by clause the different statements of what is in the medicine 
and of its action. In most respects,, perhaps in all respects, as he said, the 
sentences as composed of w?ds in the English language- and as stating some- 
thing with relation to the contents, or to matters that are used as- medicine, are 
true. He differs when he gets to the proposition, that this particular medicine 
is of any effect as a medicine in tuberculosis- cases, and there is a question of 
fact for you. If the medicine- has no effect and. if it is said merely because 
people are anxious to buy a remedy, and if they deceive themselves- into think- 
ing that remedy is doing them good (even if they thereby help -thseaasseLvea) ; 
or if the remedy, because they take care of themselves, does not have any 
effect of itself; in other words, if it is just'the sauae as if these was so m-ueh 
w&tear iai the. h?ttle and if it was mkd with the intent ocf making people pay for 
water, thai is-, pay for an inert substance and induces these to exeaseise the 
phyehotegy ?? earing themselves, and. if this label yen fiadi contains, ee state- 
mest of a cure- that does mat cure as a matter of fact, -with the ondieEstaading 
that people would get in buying Et, why then the- label is> false and misleading, 
and you would consider whether you are satisfied beyond reasonable dwrtafc 
that under this third section of the statute it was intentionally/ made falsa 
sndl misleading in that way.
New, the inforniaction has two cosnts, one relating to the package that waB 
sent to Boston, Mass., on or about October 4, 1913, and the other which was 
sent to St. Paul, Minn., on or about March 1, 1914. Of course, as I have al- 
ready charged you, it would be interstate commerce to sell a bottle of medicine 
to some one in either Boston or St. Paul, t? send it from Brooklyn to comply 
with the sale. There is no dispute as to the language that is upon the pack- 
ages baca-issa they have- been sabmifcfeed to yero. The counts have not been 
separated into a charge as to whether this is intentionally false and fraudu- 
lent as to distinguish it from merely misleading or false. In fact I have tried 
to distinguish that by telling you that if the Government satisfies you beyond 
reasonable doubt that the intent was to put out something that was false and 
misleading with the idea of deceiving for the purpose of disposing of it as an 
article of use, not necessarily of sale, then, of course, the matter would come 
within the language of the information. If you find that there was no in- 
tentional fraud, no intentional presentation of a false statement, and if you 
should still find that the language upon the package was false and misleading 
as to facts as distinguished from opinion, it would still come within the lan- 
guage of the statute. If the Government should satisfy you as to that beyond 
leasonable doubt, the charge would still be made out in that sense. And as I 
told you, it is all a question of whether you find as a fact one or two of these 
matters. One, that this label was intentionally false and fraudulent and sent 
out for the purpose of deceiving, as distinguished from an honest belief that it 
was helpful and that the statements made were true. The other point is, if 
you find that the statements upon the paper itself state as facts what is not so 
in any material sense or particular, according as you determine those ques- 
tions (of course, recognizing the proposition that if any witness willfully de- 
ceives you here within the court room, it is within your power to pay so much 
attention to what he says as you see fit, weighing all the testimony) then see 
if the precise charge under this information is proven beyond reasonable doubt, 
and do not speculate upon these matters of medical science; do not determine
for yourselves whether or not you want to buy this medicine or have somebody 
use it, or whether you would try it as a last resort.   Keep that out of the case. 
?Simply see whether the defendant has done something that brings it within 
this statute and whether that is shown beyond reasonable doubt. 
The Government requests me to charge:
(1) It is unnecessary for the Government to prove that all the statements 
on the label or booklet or circular were false and fraudulent. If you believe 
from the evidence that any one statement as to the curative or therapeutic 
properties of this compound was false in fact and that the defendant knew 
that it was false, then you may find the defendant guilty.    I so charge.
(2) If you believe from the evidence that as to any one of the ailments 
for which this compound is recommended by the label or booklet or circular 
and which is set forth in the information this compound would have no bene- 
ficial effect whatever, and the defendant knew this, you may find the defendant 
guilty. In the way that I have defined fraud I do charge that yes. If the 
defendant sent these out knowing that he was making a false statement, that 
'would be a fraud.
(3) If you believe from the evidence that any one of the therapeutic claims 
as to the effect of this compound upon all pulmonaiy diseases, for all forms of 
consumption, for hemorrhages or for night sweats, was false and was made 
by the defendant with a reckless and wanton disregard as to whether it was 
true or false, you may find the defendant guilty.   I so charge.
(4) If you believe from the evidence that any one of the therapeutic statements 
upon the label or booklet or circular as set forth in the information was partly 
true, but was so artfully worded as to convey a meaning as to the compound's 
therapeutic properties which was wholly false, and that the label and booklet 
and circular was so worded for the purpose of deceiving the public, then that 
.statement would be false and fraudulent, and you may find the defendant guilty. 
I so charge. If this paper or label was made up in such a way that people 
would get the idea of false facts as distinguished from either a correct or in- 
correct opinion of the person making the statement, if that paper was gotten 
up so as to present false facts to people or to make them believe things were 
false as facts as you find them, and if sold and put on the market for the 
purpose of selling by means of false statements of facts, that would bring it 
within the section.
Now, Dr. Payne, if you think that I have stated the matter incorrectly from 
either standpoint of the law or of the testimony, you want to get it on the 
record now.
Dr. PAYNE. I have nothing to say.
The jury thereupon retired and after due deliberation returned a verdict 
of guilty, and on March 26, 1917, the court imposed a fine of $25.
CABL VBOOMAN, Acting Secretary of Agriculture.