which line of thought with reference to the matter of the frozen eggs seems the most reasonable way of approaching it. You recollect Dr. Smith says it isn't enough to find out how many bugs there are in a quarter of a teaspoonful of the product. (I believe he says he found 18,000,000.) It doesn't follow from that that they were bad bugs. It is fair to say, however, it seems a fair inference to make, that, if he did find 18,000,000, he would think it worth while to apply the acid test in order to be sure one way or the other. You will also remember that Dr. Wolff told you the acid test is not a recognized test in such cases and is not used by boards of health the country over. I think Dr. Smith says that he himself has confidence in it, but he doesn't state that he is following the rest of the scientific investigators when he performs it.

I don't think it worth while for me, gentlemen, to delay you in your work. I want you to approach the matter fairly and apply your ordinary common sense which was born in you and which it is your duty to apply to all matters that come before you for your decision. I shall trust you to arrive at the proper verdict after consultation among yourselves.

You may now retire.

UNITED STATES v. THREE BARRELS OF VANILLA TONKA AND COMPOUND

(District Court, W.D. Texas, Jan. 14, 1911)

N.J. No. 1306

Libel under section 10 of the Food and Drugs Act. Tried before the court. Libel dismissed.31

MAXEY, District Judge. This cause coming on to be heard this 11th day of January, A.D. 1911, the parties hereto appeared in open court by their counsel and announced ready for trial, and a jury being waived the matters of law and fact were submitted to the court without a jury; and the United States of America, libelant, having introduced and closed its evidence and the court finding therefrom that the three barrels charged to be Vanilla Tonka and Compound, seized and libeled herein, were not transported or shipped for sale, but were shipped for the purpose of being used by the Creamery Dairy Co. in the manufacture of ice cream and purchased and held by it for that purpose, and the United States of America, libelant, having failed to introduce any evidence showing that the Secretary of Agriculture had caused notices to be given to the party from whom the sample was obtained and given him an opportunity to be heard as prescribed in section 4 of the act of Congress of June 30, 1906, regulating such proceedings; and the court being of opinion as a matter of law that the property libeled herein cannot be condemned because it was not transported for sale as above indicated, and being also of the opinion as a matter of law that the proceedings against property in such a case can in no event be had without the notices referred to having been given by the Secretary of Agriculture and

"Appeal dismissed, United States v. Hudson Manufacturing Co. et al., p. 420, post.

an opportunity for a hearing allowed. as provided by said act, is of the opinion that it is unnecessary to consume further time of the court in hearing the defendants' evidence: It is, therefore, ordered, adjudged, and decreed that the United States of America, libelant Lerein, take nothing by this its suit and that the libel proceedings herein be dismissed. To which action and judgment of the court, libelant. United States Government, in open court excepted and gave notice of appeal, and by consent of parties is allowed 6 months from the date hereof to perfect its appeal herein: and it is therefore hereby ordered by the court that the libelant, United States of America, is allowed and given 6 months from date hereof in which to perfect its appeal herein.

UNITED STATES v. 165 CASES OF BI-CARB-SODARINE

(District Court, W.D. Tennessee, Jan. 16, 1911)

N.J. No. 1610

Libel under section 10 of the Food and Drugs Act alleging misbranding of 105 cases and 60 cases of a product labeled "Bi-CarbSodarine, a wonderful leavening preparation-Sodarine-Better than Soda-Better than other bread preparations. Ingredients: Sodium, aluminum sulphate, corn starch, sodium bicarbonate, available carbonic acid gas when packed 16.66 per cent-net weight not less than 16 oz." Demurrer to libel sustained. Libel dismissed.

Misbranding was charged in the libel for the reason that the product was an alum baking powder and contained a large quantity of alum, while the labels and brands on the packages of the product declared it to be entirely different from and superior to the leavening agents ordinarily used; such statements were therefore alleged to be false and misleading because the product was composed only of ordinary leavening agents.

MCCALL, District Judge. The only thing that I can deduce from the label complained of in this proceeding is that the manufacturers thereof state that their leavening preparation was better than soda and better than any other bread preparations. I do not think that the act was intended to include within its condemnation such a label or publication. The result is that the demurrer will be sustained and the libel dismissed with costs.

UNITED STATES v. LORICK & LOWRANCE

(District Court, E.D. South Carolina, Jan. 17, 1911)

N.J. No. 877

Information charging violation of section 2 of the Food and Drugs Act. Jury trial. Verdict of guilty.

Lorick & Lowrance, Columbia, S.C., shipped from the State of South Carolina into the State of Virginia 3 barrels of a product

invoiced and sold as spirits of turpentine. Samples of this product were procured and analyzed by the Bureau of Chemistry, United States Department of Agriculture, and mineral oil was found to be present.

A criminal information was filed against the said Lorick & Lowrance, charging the shipments above referred to and alleging the product so shipped to be adulterated in that it was sold as and for pure spirits of turpentine, when in truth and in fact it was adulterated because it contained 3.2 percent of mineral oil.

The following charge was delivered to the jury:

By the COURT. The court is requested by the learned counsel for the defendant to give you certain instructions:

1. The information being for the violation of the act by the shipment of turpentine alleged to have been adulterated by the addition of mineral oil, if the jury believe from the evidence that turpentine is a commodity the bulk of which is used for mechanical purposes and only a small percentage is used as a drug, the jury cannot convict, unless it has been shown by the evidencebeyond a reasonable doubt that the defendant knew that the shipment in question was intended for use as a drug.

I cannot give you that instruction. I am doubtful whether it is a correct statement of the law. Without passing upon that, where a case might arise in which that instruction might be pertinent and important, the court is of opinion that in this case there is sufficient evidence to go to the jury that the defendants were advised that this particular turpentine was to be used as a drug, because the paper which I hold in my hand is the first letter which was addressed by the Hite Company, Roanoke, Va., to the defendant company, and that has in broad, plain letters at the top of it these words: "Dr. S. P. Hite Company, Inc., Manufacturers of Hite's Pain Cure and Other Remedies, also Flavoring Extracts, Staple Drugs, etc.", and in the corner there is a bottle, "Hite's Pain Cure, the Greatest Internal and External Remedy ", and the letter is as follows: "Please quote us your bottom price on pure spirits of turpentine in 5-gallon, 12- and 1-barrel lots." That is sufficient advice to this defendant company that this particular shipment of turpentine was to be used as a drug.

2. The information in this case alleging three different shipments of adul terated turpentine, and the evidence tending to show only one instance of adulteration, the jury cannot convict, unless the evidence connects-beyond a reasonable doubt-the turpentine analyzed with some one particular shipment.

I cannot give you that instruction; it would be misleading. The testimony of the manager of the Hite Company was that this turpentine was obtained from Lorick & Lowrance; that there were three shipments-one in May, one in June, and one in July; he was uncertain as to which package this particular turpentine which was sent to the Williamson Grocery Company was taken from. It was taken from one of the three. Now, if the case were otherwise made out, it is uncertain which package this turpentine was taken from, if you are satisfied beyond a reasonable doubt that it was taken from any one, you will consider the testimony as to which one of the packages was most likely to be the one that this turpentine came from. If

you believe that it came from any one of the three it will be sufficient, and you will find your verdict, guilty or not guilty, as the case may be, on whichever count you think it most likely that this package, which is most likely from the testimony that this turpentine came from.

3. The jury can not convict in this case unless the evidence has shown beyond a reasonable doubt that the turpentine alleged to have been analyzed was from some one of the barrels alleged to have been shipped by the defendant.

The court gives you that instruction; that is, you must be satisfied beyond a reasonable doubt that the turpentine alleged to have been adulterated came from one or the other of those three shipments by Lorick & Lowrance.

The testimony shows that Hite and Company ordered three times, and that three separate shipments were made, and that, out of the three, possibly the three commingled, certain packages were made up in small bottles, such as have been produced in testimony, and sent to the Williamson Company, West Virginia, some time early in the year following the shipment; that the Government inspector bought from Williamson and Company several of these boxes filled with these small bottles of turpentine, and upon analysis it was found that the turpentine was adulterated, that it was not pure; that there was 3 to 3.2 percent of mineral oil in it. If you believe that testimony, then the only question left for you is whether or not the turpentine was adulterated when it was shipped by the defendants. On the part of the defendants it has been testified that this turpentine was bought from distillers in the adjoining counties; they are uncertain as to the particular parties from whom this particular turpentine was bought; that the practice of that company was that when turpentine was received to subject it to certain examinations, and they have produced here the instrument by which they examined it, a hydrometer, that demonstrated, for all their purposes, that it was pure turpentine. On the part of the Government, it is contended that the hydrometer that defendants employed was not such as would enable Lorick & Lowrance to ascertain whether or not there was mineral oil in the turpentine, that that is not a process which would demonstrate the presence or not of mineral oil. You have heard that testimony, you have to determine from it whether or not that contention is true. If you believe, and you must believe from the testimony, that the turpentine was adulterated, then you must determine whether or not it was adulterated before it was shipped whether by Lorick & Lowrance, or by the parties from whom they purchased. If it was adulterated after it passed from their possession, whether in transit on the railroad, or whether it was adulterated by Hite and Company, or by Williamson and Company, after it was received by them, then you can not hold Lorick & Lowrence responsible. You must be satisfied beyond a reasonable doubt that it was adulterated before it was shipped. It is the shipping of the adulterated drugs which gives this court cognizance of the offense. If you have reasonable doubt about it, you must give the defendants the benefit of the doubt.

UNITED STATES v. FRANK ET AL.

(District Court, S.D. Ohio, W.D., Jan. 21, 1911)

189 Fed. 195; N.J. No. 823

Information alleging violation of section 2 of the Food and Drugs Act. Judgment on plea of guilty.

HOLLISTER, District Judge. The United States filed an information against Jacob Frank, Charles Frank, and Emil Frank, doing business under the firm name and style of the Frank Tea and Spice Company, charging them with having unlawfully shipped and delivered for shipment from Cincinnati to a firm at Mount Sterling in Kentucky, 1 gross bottles of a certain article of food purporting to be terpeneless lemon extract, marked "P. & S. Brand Extract Terpeneless Lemon Artificially Colored. The Frank Tea & Spice Co., Cincinnati, O.", and that the same was adulterated in that a dilute solution of alcohol and water was substituted in part for said terpeneless lemon extract so that the same contained no more than five one-hundredths of 1 percent (0.05%) of citral derived from the oil of lemon; whereas, it should contain at least two-tenths of 1 percent (0.2%) by weight of citral derived from the oil of lemons, as required by the standards of purity of food products, established by the Secretary of Agriculture in accordance with the provisions of the act of Congress, approved March 3, 1903, 32 Stat. 1158.

The information also charged that the dilute solution of alcohol and water was mixed and packed as and with said article of food so as to reduce and lower and injuriously affect the quality and strength of the article of food purporting to be terpeneless lemon extract.

For a second count the information charges that the article of food called "terpeneless lemon extract" was misbranded in that the statement on the bottles that the article contained herein was extract terpeneless lemon was false and misleading in that the article did not contain at least two-tenths of 1 percent of oil product by weight of citral derived from the oil of lemon, and did in fact contain only five hundredths of 1 percent (0.05%) of citral, and that the same was not terpeneless lemon extract as recognized in the trade generally and in the standards of purity of food products established by the Secretary of Agriculture in collaboration with the Association of Official Agricultural Chemists, approved by act of Congress, March 3, 1903, ch. 1008, 32 Stat. 1158.

The defendants, believing, as admitted in open court, that only a nominal fine would be imposed upon a plea of guilty as for a technical violation of the pure food law, pleaded guilty.

The defedants having within some 6 or 7 months prior to the filing of this information pleaded guilty to two so-called "technical violations" of the Pure Food Law, and being thereupon fined only in nominal amounts, the court on this plea imposed a fine of $200. Thereupon the defendants deeming themselves aggrieved, and upon the urgent solicitation of their counsel, the court permitted counsel to