OFFICE OF THE SOLICITOR. 413 



have a right to consider why the cliange was made and why no other 

 change was made tlian merely from tlie word " cure " to the word 

 " for " ; in otlier words, whether that is not merely a colorable change 

 designed for the purposes of leaving the statements at best equivocal. 



The court also stated that in his judgment the label did mean and 

 was intended to mean that the article was curative. 



With regard to. evidence introduced to show that water was help- 

 ful in the treatment of certain diseases, the court stated that that fact 

 was a long way from importing truth into this label as a representa- 

 tion of the virtues of a drug. The court further stated that the law 

 exacts, in the carrying on of its high purposes, that the label should 

 square — should cover not only the package but the ascertainable 

 truth respecting its contents and that this law was not to be frus- 

 trated or made uncertain of application or to be regarded as being 

 without standards merely because as to any ingredients, food, drugs, 

 liquids, or solids, an individual may be able truthfully to say that it 

 was helpful to him. It was further charged that the jury were not 

 required to believe that it was possible to label water, such as came 

 from Lake Michigan, as a drug and not offend against the food and 

 drugs act. 



With regard to testimony introduced on behalf of the defendant 

 to the effect that the curative properties of the water could not be 

 known except through use, the court instructed the jury that it did 

 not apply to them, as men of good sense, to say, in a case where an 

 article was shown to have certain definite proportions of a drug or 

 a chemical or of a mineral, that they could form no practical idea 

 in advance as to whether it has any curative effect. 



It was further charged that to say that this label was a fraudulent 

 one does not mean that the one wiio put it out, or the defendant cor- 

 poration, as between itself and the individual who bought a bottle 

 of the water, had a personal malicious scheme or design to get money 

 out of it, but that it was the idea of practicing a deception through 

 a statement, through a practice, through an act which, in the light 

 of attending circumstances, shows that the one who made the state- 

 ment or committed the act ought to have known better, producing 

 damage by deceiving somebody, and therefore a mere open or reck- 

 less disregard of the truth may constitute fraud just as much as a 

 personal malicious design to do an act that hurts another. 



Upon the question of reasonable doubt the court instructed the jury 

 that it did not mean, for example, that they might recognize the mere 

 possibility that somebody had been cured, as he believed, by this 

 water. 



In United States v. Roberts Cotton Oil Co. (Notice of Judgment 

 No. 5909) the defendant company had placed tags on cottonseed meal 

 in accordance with the instructions of the purchaser, thus misbrand- 

 ing it and then shipped it in interstate commerce. Upon the conten- 

 tion of the defendant that the act of misbranding was not its act, 

 but that of the man whose tags they placed on the feed, the court 

 ruled that it was the act of the defendant company. 



In United States v. Early & Daniel Co. (Notice of Judgment No. 

 6210), in which an information was filed by the district attorney by 

 virtue of his office without verification and without supporting affi- 

 davits and in which no warrant for arrest was sought, upon the mo- 



