The Food and Drug Act of June 30, 1906 ( 34 Stat. 768 ), provided in section 2 as follows:

Section 8 of the act provided:

In U. S. v. Johnson, 221 U. S. 488 , 31 Sup. C’t. 627, 55 L. Ed. 823 , this act came before the Supreme Court of the United States upon the question as to the meaning of tire word “misbranded,” as defined in the act, with'respect to a false statement on the label. The court held:

—and not at statements as to curative effect. In that case it was charged that the label stated or implied that its contents were effective in curing cancer, the defendant well knowing that the representations were false. The court held that, even if tire statement was misleading, it was not covered by the statute. This decision was rendered in May, 1911.

President Taft almost immediately transmitted to Congress a special message calling attention to the necessity of passing at an early date an amendment to the Food and Drug Act supplementing the existing law to “prevent the shipment in interstate and foreign commerce of worthless nostrums labeled with misstatements of fact as to their physiological action.” In the course of the message tire President said:

In response to this message an amendment to the act was introduced in the House, which was explained by Mr. Sherley, its author.' In the *923 course of his remarks he referred to the President’s message and the decision of the Supreme Court in'the Johnson Case, in which he stated that the court had held:

The amendment was passed. It provided, among other things, the addition of a paragraph to section 8 of the Act of June 30, 1906, defining misbranding, as follows:

The information in this case contains four counts. The first count charges the defendant with the unlawful shipment and delivery for shipment via United States mail from the city of Tacoma, state of Washington, to the city of Portland, state of Oregon, consigned to Clarke Woodward Drug Company, a certain package containing three boxes, each box containing an article designed and intended to be used in the cure, prevention, and medication of diseases of men. The character and brand of the boxes is set forth, and it is charged:

The other three counts were identical with the. first count, except as to the name of the article shipped, namely, Gon-Nol for diseases of men, Kar-Nitum for diseases of cattle, and Kar-Kol for diseases of man and hogs. Upon the trial of the case before a jury, the corporate capacity, identity, and domicile of the defendant and the shipment of the articles described in the information were admitted, and evidence was introduced in support of the information and for the-defendant. The jury found the defendant guilty upon all four counts. The defendant contends that there was no substantial evidence to sustain the charges in the information that the packages in question were misbranded within the meaning of the act of Congress as amended. The claim of the defendant is that this is a controversy relating to the efficacy of homeopathic remedies, and that the theory of the prosecution arises upon the testimony of its medical witnesses that homeopathic remedies were worthless. Assuming that the exceptions reserved by the defendant at the trial were sufficient to raise whatever questions there may be in this contention, the question is: What were the questions of fact submitted to the jury?

[1] The prosecution introduced the testimony of E. O. Eaton, a chemist in the employ of the government at the San Francisco laboratory, who testified that he had analyzed samples of Kar-Ru, which showed sugar, 83.4 per cent.; starch, 12.6 per cent.; charcoal, 1.63 per cent. He did not find any other active medical ingredient, except one part to a million of arsenic in some of the samples. There was a certain amount of water and a small amount of ash, or inorganic salts. When samples were burned, ash was left. Some samples showed ash .15 of 1 per cent., and all of them mixed together 1 part arsenic to a million. Alkaloids, chloroform,, and ammonium salts were absent, as well as heavy metals, except a trace of iron. He analyzed samples of Gon-Nol, in which he found sugar, 61.75 per cent.; starch, 30.1 per cent.; ash, .65 per cent., consisting of calcium, sodium phosphate, potassium, iron salts, ammonium salts, arsenic, 1 part in a million; charcoal, 12 per cent,; heavy metals, trace of iron. He analyzed samples of Kar-Nitum, and found sugar, 76.7 per cent.; starch, 15.9 per'cent.; charcoal, 2.85 per cent; ash, .55 per cent.; arsenic, 5 parts to a million. He analyzed Kar-Kol and found sugar, 81.9 per cent.; starch, 13.8 per cent.; charcoal, 2.15 per cent.; ash, 3 per cent.; arsenic, 6 parts to a million.

On cross-examination this witness testified- that he first made a qualitative analysis, to find the different ingredients, and then a quantitative analysis, to find the amount of each. He was asked whether in his tests he could have caught small quantities of certain elements, 'such as ammonium salts,- ferric chloride, and iodine. He thought he could have detected any small amount, but could not say whether he would have detected a quarter of a grain of ammonium «.salts. He knew he could- have detected a half grain. With respect to ferric chloride and iodine he could have caught one-tenth of a grain, but *925 could not say if he would have detected minute parts on indeterminable quantities. He made a test for nitric acid. He would have detected probably a drop in a gallon. He found one part in a million of arsenic.

The prosecution called Calvin S. White, a major in the Medical Reserve Corps of the United States Army; educated in the University of Pennsylvania and Oregon. Analysis of the elements in Kar-Ru was submitted to the witness, and he testified that—

The analysis of the elements of Gon-Nol was submitted to the witness and he testified that — •

On cross-examination the witness testified that—

J. B. McNerthney, a witness for the prosecution, testified that he had been practicing medicine for 16 or 17 years; that he had a medical education in the University of Minnesota and New York and a postgraduate at Berlin and Vienna. The synoptical analysis of the formula of Kar-Ru was submitted to him. He testified that — -

The synoptical analysis of Gon-Nol was submitted to him. Pie said it appeared to contain no medical qualities and was absolutely worthless as a cure for gonorrhoea. In liis opinion it would not be recognized in any school of medicine. Front an examination of the synoptical analysis of the formula of Kar-Kol, he testified that it appeared to contain no drugs of medical value and was absolutely worthless in the treatment of cholera or diarrhoea in human beings. It would not be considered a remedy in any recognized school of medicine. That the medicine contains 6 parts in a million of arsenic would not give it any medical value. The addition of lycopodium, pulsatilla, sulphur, nitric acid, and thuja in small quantities as not to be discovered by the chemist would be worthless in the cure of any disease.

Chester IT. Woolsey, for the prosecution, testified that—

H. K. Faber, a graduate of medicine from the University of Michigan and associate professor of medicine at Stanford University, at that time in the Base Hospital at Camp Lewis, P. B. Swearingen, a .graduate of the St. Louis University, who had taken a special postgraduate course in New York and Chicago and had been a practicing ■physician for 26 years, and Royal M. Gove, who had been practicing medicine in Tacoma for 28 years, were called as witnesses for the prosecution, and all testified to substantially the same effect as the preceding witnesses.

H. J. Shore, holding a veterinary degree and employed as a bacteriologist by the United States Department of Agriculture, N. A. Madsen, a graduate of Iowa State College and Veterinarian College ■of Copenhagen, employed by the United States Department of Agriculture as meat inspector, and Samuel B. Foster, a graduate of the Washington State College for Veterinary Medicine and employed by the United States government in the tuberculosis eradication work in Washington and Oregon, testified for the prosecution that from the analysis of Kar-Nitum the preparation would not be a remedy for tuberculosis or relief of the disease at any stage.

At this point the prosecution rested its case. The defendant did not move for an instructed verdict in its favor, but proceeded to introduce evidence for its defense.

P. H. Plebb was called.and testified that he was the president, manager, and practically the only stockholder of the defendant corporation; that he was not a medical man by profession, but for 7 or 8 years had been reading and studying medicine, particularly homeopathic medicine; that they put upon the market some medicines for common ailments, both for man and beasts; that he wrote the labels for Kar-Ru, Gon-Nol, Kar-Nitum, and Kar-Kol, and in so doing he used common and accepted terms rather than medical terms; that they all contained medical curative agents; all are made on a base of triturated sugar, carbo-vegetalis, commonly known as charcoal. This base merely carries tire medical agents, and is similar in purpose to the half glass of water in which medicine is often administered. The witness was asked on cross-examination, “How much tuber-culinum is there in Kar-Nitum?” His counsel objected to this question on the ground that the witness could not be compelled to disclose to the 'public- his trade secrets. It was sufficient, he contended, to meet the charge in the information, to show that the remedies contained curative agents, even one curative agent, in quantity sufficient to act medicinally as recognized and practiced by any school of medical practitioners. The objection was overruled, and the fitness an-, swered, “In the sixth potency.” How much that was he could not say ; it was less than one in a thousand. The witness was asked as to the potencies of arsenic and pulsatilla in Kar-Ru. He replied that he used *927 the sixth potency of arsenic; from the seventh up of pulsatilla; thuja, the eighth; nitric acid, the ninth; lycopodium, tenth; sulphur, eleventh. In Gon-Nol he used the following potencies: Medorrhin-um, sixth; sulphur, seventh; arsenicum, eighth; thuja, ninth; lyco-podium, tenth; nitric acid, eleventh.

A. H. Grimmer, for the defense, testified that he resided in Chicago; was in general practice as a physician; had been adjunct professor in the Hahnemann Homeopathic Medical College of Chicago for 10 years, and for 12 years had conducted classes in postgraduate work, members of which came from all over the world — many from Europe, particularly from' the London Homeopathic Hospital; that homeopathy is an organized system of medicine, rvhich maintains colleges and hospitals, has its county and state medical associations, is recognized in every state of the Union, and in Michigan, Iowa, and California has homeopathic departments in the State Universities, maintained at state expense. Potencies are in general use in the homeopathic practice. The degree varies with the individual practitioner. Homeopathy, as other schools of medicine, seeks to diagnose a case before prescribing. He testified as to the potencies of the remedies used for the diseases mentioned on the labels attached to the packages in controversy; that the remedies would contain curative agents for such ailments. The witness was the father-in-law of Mr. Llebb, the president, manager, and practically the only stockholder of the defendant corporation.

[2] Upon this evidence it was clearly a question of fact for the jury to determine- whether the preparations offered to the public by the defendant and described in the information were in fact misbranded in the statements regarding their therapeutic or curative effect and whether such statements were false and fraudulent. The defendant having defended on the ground that the preparations were remedies in accordance with the theory and practice of homeopathy, that question also'became a question of fact for the jury, to be determined under proper instruction from the court. Upon this issue the court instructed the jury as follows:

These instructions were in accordance with the law as declared by the Supreme Court in Seven Cases of Eckman’s Alterative v. U. S., 239 U. S. 510, 517, 518 , 36 Sup. Ct. 190, 193 ( 60 L. Ed. 411 , DR. A. 1916D, 164), where the court excluded the field where there might be differences of opinion between schools and practitioners, and explained the words “false” and “fraudulent” to conform to such exclusions. The court said:

[3] It is objected that the court allowed Dr. White, a witness for the prosecution, to testify that the preparations which had been analyzed by the chemist Eaton and shown to the witness were absolutely worthless and had no food, curative, or medical value. The testimony was clearly admissible. • In the case just cited, the court held that the law does reach one who puts inert matter or a worthless composition in the channels of trade, labeled as a cure for disease when he knows it is not.

[4] The remaining errors assigned relate to the action of the court in overruling objections to questions put to witnesses as to the curative value of arsenic in a portion of one part to a thousand, and as to whether there, was any known medicine that would cure kidney, bladder, liver, stomach, catarrhal troubles, mental and physical debility, neuritis, eczema, blood diseases, irregular menstruation, and the most acute and chronic rheumatic afflictions, gonorrhoea, cholera, and diarrhoea in human beings. The objection was overruled, and the witness answered, “Why, no,” and then said, “I might modify that by — ” The court said: “You have answered the question. -Is there anything further?” The objection was the use of the word “cure.” In support of the objection, it was said:

*929 On the cross-examination of the witness, which immediately followed his answer, he said:

In view of the fact that no exception was taken to the answer of the witness, his proposed modification, and modification on cross-examination, we do not see that the defendant was prejudiced by the question.

With respect to the remaining objections as to whether the remedies contain any alkaloids, mercury, salicylates, arsenic, or other medicines of a similar nature; as to the effect of giving Kar-Nitum to certain cattle; as to the food value of the sugar, starch, etc., found in Kar-Ru and Kar-Kol; as to the classification of various diseases; the cost of homeopathic remedies; the exclusion of a letter written by some one in New Jersey, addressed to Mr. Hebb, concerning the administration of Kar-Kol to hogs; and as to the potency of certain of the remedies in some of the articles mentioned — we find no substantial error on the part of the court in its ruling upon these questions. The testimony was admitted under well-known rules of evidence or was without prejudice to the defendant.

Tlie judgment of the court below is affirmed.