OFFICE OF THE SOLICITOR. 595 



as this concoction is sliov/n to have had in it. The jury was also in- 

 structed that the controlling element that entered into the question 

 of fraudulent intent was as to whether or not the claimant honestly 

 belie\ed that this concoction would have a remedial or therapeutic 

 effect upon the persons suffering with the diseases named on the car- 

 tons; that if he believed that, and if the jury should find that it was 

 an honest transaction in that respect, then he would not be guilty of 

 fraudulent intent; and that in passing upon that question they should 

 take into consideration all the facts in the case and determine as 

 to whether the manufacturer's knowledge was that of a person who 

 understands the effect of the article or whether or not it was the 

 statement of a more fakir or charlatan who desires to impose on the 

 public a formula for sale for the making of money. 



In the case of the United States ;y. Newton Tea and Spice Co. 

 (F. & D, 11048, 11123), involving the shipment of an article labeled 

 in part " Eggno An Excellent Substitute -for Eggs," the defendant 

 voluntarily appeared aild moved to quash the information upon the 

 grounds that the information was indefinite and did not apprise the 

 defendant of the facts constituting the alleged crime with such cer- 

 tainty and particularity as to enable the defendant to know what he 

 had to meet; that the information attempted to charge the defendant 

 with the commission of a crime by wa}^ of argument and conclusion ; 

 and that the court had no jurisdiction. The information alleged that 

 the statements on the label of the article were false and misleading 

 in that they represented to the purchasers that the article was a sub- 

 stitute for eggs and could be used in place of eggs in baking and 

 cooking, whereas in truth said article was not a substitute for eggs, 

 nor could the same be used in place of eggs in baking and cooking. 

 The ground of defendant's contention, with regard to this charge, 

 was that the information did not set forth why or in what manner 

 the article could not be used as a substitute for eggs in baking and 

 cooking. The court held that the statements on the label were evi- 

 dently designed to lead the ordinary housewife to believe that the 

 contents of the package could be used in substitution for eggs in the 

 ordinary preparation of food and that the information expressly 

 negatived the use of the article for that purpose and that it would 

 seem therefore to be entirely sufficient to try the issue upon that 

 question. 



Upon the defendant's contention that the court had no jurisdic- 

 tion for the reason that the information did not state the offense, 

 the court said : 



Even though we assume it to be the duty of the pleader under this net to 

 negative the terms of the i)roviso or assume that the article in question is shown 

 by the label to be a mixture or compound known as an article of food under 

 its own distinctive name, not alleged to be in imitation of another, nevertheless 

 the pri)t('ctioii afforded by this proviso goes only to the branding or name of 

 the article and does not furnish a refuge for one who has on tiie label odicrwise 

 falsely stated the nature of (he contents of the package. It is not against the 

 use of the name "Eggno" that the information is directed, but against the 

 statement that the contents arc useful and fit to be substituted for eggs in 

 ordinary cooking recipes. 



Upon the defendant's contention that tlie stalt^nunt " Substitute 

 for Eggs in Baking and Cooking " v.as not one of fact, but of opinion 

 only, and therefore not in law misleading; that the substitution of one 

 thing for another is largely a matter of judgment, and that to call 



