theorize, or speculate that the drug would be just as good if it did differ from that standard of strength, quality, or purity and contain à lesser quantity of the ingredients to which I have repeatedly called your attention-those being the essential ingredients of the fluid extract. Of course, the variation from the standard fixed by law must be real and not imaginary or the result of guesswork, but if it does vary to any substantial amount in strength, quality, or purity from the standard fixed by the statute, then the case is made out irrespective of intent, as I have already stated, and irrespective of the effect of such adulteration on the health of the consumer.

The credibility of the witnesses who have testified in this case as well as their accuracy is for the jury to determine. Were the tests or analyses made carefully, honestly, and intelligently by competent persons who knew how to do that which they undertook to do? You are to consider the experience and skill and knowledge of the men who made these tests of these fluid extracts in question. You are to note and consider the fact that the Government's chemists expert in this business as well as Professor Ellery, from Union College, agree that in the respects named as to these essential ingredients as shown by their tests the fluid extract fell below the standard fixed by law.

You are to consider the fact that the chemist from Union College concedes that he threw away the wrapper and marks and writing thereon on the bottle of fluid extract given to him by the defendant and from the contents of which he made his analysis. It is for you to say whether or not the bottle given him and from which he took the samples which he subjected to is analyses and from which Mr. Grose and Mr. Kirschberg took theirs was the same bottle or container returned to the defendant by the Department of Agriculture. If the wrapper with the writing put there by Mr. Lind had been preserved it would have been better, but, gentlemen, the force and effect of this evidence, in view of all the evidence produced and circumstances in the case established to your satisfaction, is for your consideration and determination.

So you are to consider in determining what the strength of this fluid extract really was in the respects named; the mode and manner adopted for bringing it up to the standard when found, after coming from the percolator, to be below that standard which is required by the law. The law would not be complied with if the defendant adopted an improper method of bringing it up to the standard, one which by mixing in the powder in the manner described brought certain parts of the fluid extract up to the standard and left other parts of it below the standard. You have heard the evidence on that subject as well as a description of the mode and manner or process by means of which fluid extract of cinchona is properly made. You have heard the evidence as to the three essential anhydrous ethersoluble alkaloids found in fluid extract of cinchona. Considering the method used to raise the standard of this fluid extract after it came from the percolator it is for you to say, under this evidence, did this fluid extract on being bottled and shipped in interstate commerce contain the anhydrous ether-soluble alkaloids from cinchona required, viz, 4 grams per 100 cubic centimeters? In short the methods pursued in the manufacture are to be considered as well as the

method adopted for bringing it up to the standard when found deficient as well as what was done in the various analyses made by the several witnesses who have given testimony in this case.

One or more of the witnesses for the defendant was employed by it to make a test or analysis, and one said that he knew something was depending on the result of the analysis he made. Did or did not this induce him to take any measures which would cause his analysis to show more of these essential alkaloids than it really did? And did he in fact have the sample that came from the Department of Agriculture? The chemists who gave evidence for the Government are in the employ of the Government and it is for you to say whether or not this fact has in any way affected them in giving their testimony and induced them to vary the test or analysis to any extent or in any way favorable to the Government.

This case is one of importance not only to the Government but to the defendant, as it involves the imposition of a fine on the one hand and the maintenance of the law, if it has been violated, on the other hand.

You are to act fairly, fearlessly, and impartially, and if satisfied beyond a reasonable doubt that this fluid extract of cinchona offered and shipped in interstate commerce by the defendant on or about the 8th day of November 1912 did not then contain 4 grams per 100 cubic centimeters of the anhydrous ether-soluble alkaloids from cinchona, then say "Guilty " as charged in the first count of the indict

ment.

If, on the other hand, you find from the evidence that the fluid extract mentioned did in fact contain 4 or more grams of the anhydrous ether soluble alkaloids from cinchona per 100 cubic centimeters when shipped, then your verdict will be "Not guilty."

It may be of interest, gentlemen, for me to say to you that a centimeter is a measure of length and is one hundredth of a meter, or 0.3937 of an inch, which is considerably less than one half an inch. while a gram is the unit of weight in the metric system, or 15.43 grains troy weight. Cinchona is the name of a tree, and from its bark is extracted certain anhydrous alkaloids or ingredients which are soluble in ether, and one of these is what we know as quinine, useful in medicine and especially in certain fevers. Ether-soluble alkaloids include quinine, quinidine, and chinchonidine.

You take the law from the court, of which the court is the sole judge. This is your sworn duty. You are sole judge of all the disputed facts and of the inferences to be drawn from conceded or proved facts. Conceded facts you are not at liberty to question, but when the evidence conflicts you are to decide. This is your sworn duty, guided by the principles of law to which your attention has been called. The credibility of the witnesses-their truth and accuracy is for you.

The following requests by the defendant for charge to the jury were refused by the court:

8. This method laid down was not followed by the witnesses who testified for the plaintiff..

No. It is for you to say, gentlemen, in this evidence what the process used by the Government experts was; and was it the process described in this law as I have read.

9. The assays made by the witnesses for the United States are therefore not to be relied upon as giving correct results.

No. It is for you to say did this process followed give correct

results.

19. That the result obtained by analysis by the Government chemists is not entitled to any greater consideration or respect by the jury than is the result obtained by other chemists of acknowledged standing and ability in their profession.

No, as written, but yes with this addition: "For the reason they are Government employees of [or] Government chemists. You are to consider their interest, if any, their character, their knowledge and skill and experience, and the care exercised by them in making their analyses; and say whether or not they were correct in view of all the evidence in the case, including that of defendant and its witnesses, and whether the defendant's witnesses were incorrect and inaccurate in their results."

The jury thereupon retired, and after due deliberation returned a verdict of guilty, and the court thereupon imposed on the defendant company a fine of $200.

UNITED STATES v. BOWERS

(District Court, E.D. Tennessee, Sept. 19, 1916)

N.J. No. 5072

Information alleging violation of section 2 of the Food and Drugs Act. Jury trial. Verdict of acquittal.

SANFORD, District Judge (charge to jury). Gentlemen of the jury: This defendant is charged in this case with violation of the Food and Drugs Act, commonly called the Pure Food Law, charged by criminal information, which has the same effect as an indictment. It contains two counts, the first count charges that he shipped in interstate commerce, as oil of birch, a certain article of food which was adulterated in that it contained methyl salicylate, which had been mixed with it so as to injuriously reduce its quality and strength and in which methyl salicylate had been substituted in whole or in part for oil of birch [which] the article purported to be.

In the second count he is charged with shipping the same article of food which is alleged to have been misbranded in that it was a solution of oil of birch and offered for sale under the name of oil of birch. There is no dispute in this case about the fact that this defendant shipped these four cans, which contained the articles in question seized.

Now, I charge you that if oil of birch, as from the proof, is an article which is used as one of the ingredients entering into the composition of root beer, that then it is an article of food within the meaning of the Food and Drugs Act.

It has been testified to by the Government witness, the chemist, that an examination of these four cans showed that it was not composed exclusively of oil of birch but that about 75 percent of it was another substance known as methyl salicylate, at least 75 percent; oil of birch being the natural product resulting from the distillation

of birch bark, methyl salicylate being what is called a synthetic product, that is, an artificial product made from coal tar. Now, there is some question in this case as to whether or not methyl salicylate put in oil of birch would injuriously affect it, whether it makes any substantial difference in the food. You need not bother about that question, because it is immaterial because it is involved in another paragraph of the same first count. It is charged that it was substituted in whole or in part for oil of birch, so that is sufficient. Now then, this defendant insists he sold it, offered it for sale as oil of birch. Now, of course, the first thing for you to find is that oil of birch is an article of food. If you find it is an article of food, as I find it is, you have then got to find whether the methyl salicylate was substituted. The Government has to prove that or it has no case at all. That rests on the undisputed testimony of the chemist. If you believe his testimony, that proves that fact; if you don't believe it, it is not proved at all; but if you find this article of food oil of birch, and that methyl salicylate was substituted, then you come to the real question about which the contest is chiefly based in this case, as shown in the testimony and argument of counsel, whether or not the defendant knew or had reason to know that this article which he shipped or which is shipped by his clerks was an imitation of oil of birch in that methyl salicilate had been substituted to the extent of about 75 percent. That is the point in this lawsuit about which the real contest has been.

Now, this defendant is entitled to the presumption of innocence, with which the law shields every defendant tried on a criminal charge; he is not to be found guilty by you unless after careful consideration of the evidence you are satisfied of his guilt and have no reasonable doubt in your mind about it. If you are not satisfied, have a reasonable doubt about it, then it will be your duty to acquit him. I charge you as a matter of law, in regard to the criminal intent under this statute, as well as other statutes that if he does it without knowledge of the fact that otherwise makes it unlawful, unless he had knowledge of the fact or facts that brought knowledge home to him, then he is not guilty. A man, of course, might ship anybody, might ship any article that was misbranded or adulterated with certain things and unless he had reason to know it was a misbranded or adulterated article he would not be guilty under the criminal law, he can't be made criminally liable unless he knew or had reason to know that it had been adulterated or misbranded, otherwise he would be innocent. So then the real point in this case is whether or not this defendant knew or had reason to know that the so-called oil of birch he offered for sale or shipped, either through himself or his clerks, that it was an imitation or that it contained this methyl salicylate which had been substituted. Of course, if his clerks carried on that sort of business and shipped it for him he would be just as guilty as if he had done it himself, as he instructed them to do it. If, on the other hand, his clerks had carried on this business and shipped any of it without his knowledge, and he was entirely innocent of the matter he would not be guilty under the act. not criminally responsible for his clerks. The Government says he must have known that and that he had been engaged in the oil business, and the Government has shown him to have bought in the last year or two, I believe, I don't remember how much, it seems that the

witness says 1,500 pounds in 1913 and 1914. He bought this methyl salicylate, and that he must have been buying it according to the Government's theory, because he was using it for this very thing, for the purpose of adulterating oil of birch. The way prices were then running there was a large profit in it. If that theory is supported by the facts, if you believe that is what really happened, and you find this is an article of food and had methyl salicylate in it, which had] been substituted for the oil of birch, the natural oil of birch, then you will find him guilty.

Now, on the other hand, his theory is that nothing of that sort did happen; that his clerks bought a large quantity of it in his absence; that he believed and they believed, so far as he knew, that it was real oil of birch; that one of the men from whom he bought it told him that and gave him an affidavit and he believed that to be true, and he continued to sell it because he acted in good faith believing it was real oil of birch. He did buy this methyl salicylate in large quantities, he does not know exactly how much he bought; that he was buying that for entirely different purposes, mainly for purpose of selling to people up there as a remedy for rheumatism, selling it to people at Elizabethton and any other place, and that is the way he disposed of this large quantity of methyl salicylate by selling it to people who wanted it. That he never sold it to anybody connected with the manufacture of oil of birch so far as he knew, and he had no reason to suspect it. It is for the jury [to say] whether his clerks adulterated it or the mountain men adulterated it; I am not sure, the argument was not clear on that point. I presume the theory would be the distillers adulterated it; that was not brought out by counsel or in the defendant's testimony, but I presume he would say the mountain men and not his clerks. The Government says that explanation is wholly unreasonable and uncorroborated. That is the substance of the Government's argument. That it is too unreasonable for the jury to believe and that the only reasonable explanation is the methyl salicylate was put in with his knowledge for adulterating this oil of birch. That is the Government's position.' I extend no view to you whatever on the facts in the case to be passed on by the jury. You take into consideration, as to the weight to be given to them, and, of course, then the main question is as to the veracity of this defendant. He has appeared before you, you heard him testify and you must judge of the reasonableness of his statement on the witness stand and as to whether or not you believe the statement, consider the impression he made on you, also to remember he is the defendant and is interested in the case. The case must to a great extent turn on the effect he produced on you. It is a question of fact, if you believe from this evidence that he knew, had reason to believe that the product was shipped and was oil of birch, but knew at the time it was really in a large quantity composed of methyl salicylate, and was an article of food, if you believe that, have no reasonable doubt about it, he is guilty and should be so found under both counts.

If, on the other hand, you don't believe that, you don't believe he knew it, or had reason to believe such adulteration, he did not know it or had any reason to believe it and acted in good faith, if you have reasonable doubt about it, then it is your duty to acquit him. There are the two reasons, I submit them to you with[out] expression of opinion.