The second sentence quoted is a distinct affirmation of fact concerning the contents.

No. 7

I charge you, gentlemen of the jury, that there is no legal standard provided by law fixing the degree of efficiency which any given article must contain when sold as a substitute and in this case there is no legal standard provided by law fixing the degree of efficiency which the product known as Eggno" must possess when sold as a substitute for eggs in baking and cooking, when compared with

eggs.

Therefore, if you find from the evidence that the article involved in this case, known as "Eggno", was sold as a substitute for eggs in baking and cooking, and that said "Eggno" did have any fair and reasonable degree of efficiency as such a substitute, or was a substitute to a fair and reasonable degree, for eggs for baking and cooking purposes, you will find the defendant not guilty. And in this connection I charge you further that a product sold as a substitute for eggs for baking and cooking purposes is not required to be 100 percent as efficient in all or any respects as eggs, but is only required to be fairly and reasonably as efficient as eggs for the purpose mentioned.

Refused. (Signed) Peck, J.

No. 8

The court instructs the jury that the Eggno involved in this case was not sold as a food for its food value, but that the label fairly construed represents the product to be sold as an accessory in baking and cooking, and in that respect as a substitute for eggs. And in considering whether the product is or is not a substitute for eggs for baking and cooking purposes you are only permitted to take into consideration the purposes for which eggs are used in baking and cooking.

Refused-see label "nutritious." (Signed) Peck, J.

No. 9

I charge you, gentlemen of the jury, that the basis of the charge in this information is not one of adulteration. The Government undertakes to and must prove beyond a reasonable doubt that the product is so labeled as to deceive the ordinary purchaser of ordinary intelligence purchasing said product for baking and cooking purposes, and if you should find from the evidence herein a reasonable doubt as to whether or not such purchasers in purchasing the product for cooking and baking purposes were so deceived, then your verdict will be not guilty.

Refused-would require Government to establish actual deceit of purchasers. (Signed) Peck, J.

No. 10

The court instructs the jury that in considering whether the product involved in this case is or is not a substitute for eggs for baking and cooking purposes, the question as to its own food value, or the

food value (so far as the question of nutrition is concerned) of the finished baked or cooked foods imparted to them by it, is immaterial and you should disregard all testimony relative to the same. Refused-same ground as No. 8. (Signed) Peck, J.

UNITED STATES v. ST. LOUIS DAIRY CO.

(District Court, E.D. Missouri, Feb. 7, 1920)

N.J. No. 11,430

On demurrer to indictment for alleged violations of Food and Drugs Act. Demurrer overruled.

FARIS, Judge. The defendant has been indicted on eight counts for alleged violations of the act of June 30, 1906, as amended. To this indictment, and to each count thereof, defendant demurs. The ground of demurrer to each of the counts of the indictment is identical; so but one count need be considered.

The indictment contains apt allegations to the effect that heretofore, to wit, in the year 1911, this same defendant was upon its plea of nolo contendere to a criminal information convicted and fined the sum of $50 and costs for a violation of the same act under which defendant here stands charged in the indictment now pending. Toward these allegations of prior conviction the demurrer herein is aimed. Touching the above allegations of the indictment it is strenuously urged in the demurrer that they are impertinent, irrelevant, and that they have no relationship to, or connection with, the offense now charged in the several counts of the instant indictment. After a careful consideration of the point urged I am of the opinion that the demurrer ought to be overruled.

The statute under which the defendant is indicted provides, among other things, that for a first offense thereunder the punishment shall on conviction be a certain minimum in the statute set forth; but that on conviction for a second offense, or any subsequent offenses thereunder, the punishment shall be increased in a certain definite manner in the statute prescribed. Notwithstanding this provision, it is strenuously insisted by defendant that the setting out of such former conviction at length in the indictment is without warrant of law and that the same will be hurtful and prejudicial to it upon its trial.

I have been unable to find any case directly in point upon the question mooted. The Government contends that since it is well settled in the practice in the State courts, under the so-called habitual criminal acts, that former convictions must be set out in the indictment, the decisions so holding, which are numerous (State v. Austin, 113 Mo., 538; State v. Schumacher, 12 Mo. App. 569; Ward v. State, 53 N.Y. 511), are decisive of the point here involved. Against this insistence the defendant contends that there is no analogy existing between the two propositions. This, for the reason that in the State courts (except in a few negligible exceptions) a trial jury both finds the fact of guilt and fixes the punishment, while in the Federal courts the trial jury simply finds the fact of guilt and

leaves it to the court, under the several statutes, to fix the punish

ment.

I do not think that the reason urged by defendant is conclusive. It is well settled that the indictment is a mere formal charge; that it is not in any way evidentiary. Besides it is difficult to perceive the nature of the procedure which could be invoked, in order to acquaint the court, when fixing the punishment, with the fact that a former conviction, unless such convictions were pleaded. While the court is required to take judicial notice of the whole record in a given case, the court is not required to take judicial notice of the record of one case which is pending, or which has been pending in such court, upon the trial of another and wholly disconnected case, such as two prosecutions, even against the same defendant, would constitute. Therefore absent the pleaded fact of a former conviction, the fact of such conviction would or might easily escape the attention of the court. The fact, therefore, of such former conviction, ought, I think, to be pleaded by the Government, so that the court would have the formal charge thereof before it when it comes to fix the punishment. Moreover, a question of the identity of the defendant upon trial with the person formerly convicted might well arise and become an issue in the case.

Whatever ill effect might accrue to the defendant upon the trial by reason of the recital in the indictment of a former conviction, could, if necessary, be obviated by a proper charge as to the lack of probative effect of the averments of the indictment. For these reasons, as well as others that might be mentioned, it occurs to me that the ills which might accrue to defendant, if charged in the indictment with the fact of former conviction, are more than offset by the harm which would accrue to the Government from the fact that such charge was not contained in the indictment. All these considerations induce me to take the view upon a question which seems to be of first impression under this statute, that the demurrer herein is not well taken. Let it be overruled.

UNITED STATES v. TWO CANS OF OIL OF SWEET BIRCH AND THREE CANS OF OIL OF GAULTHERIA

(District Court, S.D. New York, Mar. 10, 1920)

268 Fed. 866; N.J. No. 7691

Libel under section 10 of the Food and Drugs Act. Motion by claimant for release of product under bond. Motion denied.

The United States attorney filed a libel for the seizure and condemnation of 2 cans, each containing 60 pounds of a product purporting to be oil of sweet birch, and 3 cans, each containing 30 pounds of a product purporting to be oil of gaultheria, charging adulteration and misbranding. The alleged birch oil was labeled in part, "Oil Sweet Birch U.S.P." The alleged oil of gaultheria was invoiced as "Wintergreen Leaf Oil (Gaultheria)."

The claimant by his attorney filed a motion for the release of the product under bond. Said motion was denied.

HAND, District Judge. The claimant transported in interstate commerce the above-named merchandise which was misbranded. The articles seized had a much lower market value than the articles which the false labels described. They were branded as oil of birch and wintergreen, which are used in the manufacture of confectionery. The imitation so branded contained but a small percentage of the ingredients and consisted mainly of a chemical of different composition.

The claimant asks to be allowed to furnish a bond and to have the merchandise released so that he can sell it by correct description. It is not denied that the merchandise is not deleterious. The release of these articles after bond is in my opinion discretionary with the court. Section 10 of the Food and Drugs Act provides that any article of food that is adulterated or misbranded and is a subject of interstate commerce "shall be liable to be proceeded against in any district court of the United States within the district. where the same is found and seized for confiscation by a process of libel for condemnation."

There follows in a subsequent clause in section 10, supra, a provision empowering "the court by order (to) direct that such articles may be delivered to the owner thereof."

This is not mandatory but clearly permissive. The claimant here has been convicted of a similar offense before and has numerous other proceedings pending against him. I regard the application as addressed wholly to my discretion and I decline to exercise it in favor of the claimant under existing circumstances. The misbranding was fraudulent and injurious to competitors in the trade. The motion to release on bond is denied.

BRADLEY v. UNITED STATES

(Circuit Court of Appeals, Fifth Circuit, Mar. 18, 1920)

264 Fed. 79; N.J. No. 8701

Appeal from District Court for Western District of Louisiana. Judgment affirmed.8

Before WALKER, Circuit Judge, and GRUBB and CALL, District Judges.

CALL, District Judge. Libel was filed in the United States District Court for the Western District of Louisiana, against 275 cases of mineral water, praying for confiscation and condemnation of same for having been shipped in interstate commerce in violation of the Food and Drugs Act.

The libel, after alleging the shipment of the cases of mineral water in interstate commerce and the presence of the same within the jurisdiction of the court, alleges that the same were misbranded in the following respects:

That the following statements regarding the therapeutic or curative effects thereof, appearing on the label aforesaid, to wit, Robinson Springs Water.

8 Affirming United States v. 275 Cases of Mineral Water, p. 920, ante.

Springs at Pocahontas, Miss. Recommended in the treatment of Bright's Disease, Diabetes, Dropsy, Cystitis, Gout, Rheumatism, Indigestion, Kidney, and Bladder troubles. Directions * * * Robinson Springs and Sanitarium Co., Pocahontas, Miss.," were false and fraudulent, in that the same were applied to said articles knowingly and in a reckless and wanton disregard of their truth or falsity, so as to represent falsely and fraudulently to the purchaser thereof, and create in the minds of purchasers thereof, the impression and belief that it was in whole or in part composed of or contained ingredients or medical agents effective among other things, as a remedy for Bright's disease, diabetes, dropsy, cystitis, gout, rheumatism, indigestion, kidney and bladder troubles, when in truth and in fact said article was not in whole or in part composed of and did not contain ingredients, nor a combination of ingredients, capable of producing the therapeutic effects claimed on the labels, and therefore not effective as a treatment for said above-mentioned ailments.

C. L. Bradley put in a claim to the water seized by the marshal, and excepted to the libel: (1) That the label does not disclose that the waters contained in the bottles are misbranded, because the label does not claim that the waters contain any ingredients or substance for the cure of any human ailment; (2) the label described in the libel does not pretend that the waters contain medical agents effective as a remedy for human disease; (3) that the labels set out in the libel do not amount in law to a misbranding.

An answer was also filed admitting the shipment in interstate commerce, and the labels as set out in the libel, and were intended for sale as a mineral water recommended to be freely used in the treatment of certain diseases; that the same were in the jurisdiction of the court, but denies that they were misbranded or that the brand was false or fraudulent. The answer then proceeds to allege that before putting the waters upon sale he had the same thoroughly tested and was advised by reputable physicians that the use of said waters were beneficial in the treatment of certain kidney troubles mentioned in the libel; that the water was sold under a guaranty that those not satisfied with the result of the use of the water might have their money back; that said label had been submitted to the proper board in Washington and it expressed itself as having no objection to same; that the labeling was in good faith and not in any attempt to perpetrate a fraud upon the public.

The exceptions were overruled and the cause went to trial before a jury. After the Government case was in, the claimant moved for an instructed verdict. This motion was renewed at the close of the entire evidence. Each of said motions were refused, and the jury returned a verdict in favor of the Government, upon which a judgment was entered condemning said water.

The errors assigned are as follows: (1) The court erred in failing to sustain exceptions to the libel; (2) the court erred in refusing to instruct the jury to find a verdict for claimant; (3) the court erred in refusing the charge that the label on the bottles of water did not violate the act of Congress in that the said label made no statement regarding the therapeutic or curative effect of said waters; (4) the court erred in refusing to grant a new trial.

The first and third assignments raise the same question of law. Does the label as set out in the libel bear the interpretation sought to be placed on it by the Government, i.e., that the words, "Recommended in the treatment of," the diseases named, properly construed, mean that the said water had a curative or therapeutic quality? If