Evening star. [volume] (Washington, D.C.) 1854-1972, 1908-03-17
MR.. HARPER OBJECTS
Declares Action of President
in His Case Unprecedented.
NOT IN JAIL: BIRD CLASS
Receives Assurance of Confidence
of Friends.
GIVES OUT A STATEMENT
Reviews the History of the Trial in
Police Court and Rulings
of the Judge.
IVES OUT A STATEMENT

|
of the United States the reported re-
quest of President Roosevelt that Jail
sentence be imposed in the case of Mr..
| Harper who was convicted of violating
the pure food law. as given in The Star
yesterday. He added that he had today
received from many men high In political,
commercial and professional life assur-
ances of confidence in his integrity and
criticisms of the Presidents reported re-
quest to District Attorney Baker
| Such assurances and expressions OF
confidence and good will.'' Mr.. Harper
added, smilingly, coming from such peo-
pie. certainly make me feel that l am not
in the Jail bird class
A statement covering in full his side of
the case has been given out by Mr.. Har-
per.
MI. Harper's Statement.
In beginning his statement Mr.. Harper
| reviews the history of his headache rem
edy and the reasons for having changed
its name three years ago. Continuing, Mr..
Harper says he appeared before the board
of food and drug inspection of the Agri-
cultural Department last October and Of
fered,. If the board would definitely rule
or find that the use Of certain words and
statements on his labels were. In its opin-
ion violation of the pure food and
drugs act, to discontinue the use OF such
words and such statements on his label
and in his circulars, In order to avoid any
possible adverse criticism of the printed
matter connected with his preparation.
Notwithstanding his express request
that the board make definite ruling
upon the subject. the board, he claims. re-
fused to do so, and stated that Mr.. Har-
per would have to be the judge of what
his labels and printed matter should con-
tain At the same hearing 1t was sug-
gested that he violated the act in stating
that his preparation contained 30 per cent
of alcohol, because 1t contained or 5
per cent less. After Mr.. Harper's state
ment, however. that the quantity of alco-
hol varied slightly according to the sea-
son of manufacture and that he had
stated the maximum amount Of alcohol
contained in his medicine, the members
of the board, according to Mr.. Harper
agreed that under the regulations mace
by the department his label was satisfac-
tory so far as the statement of the guam
tity Of alcohol was concerned.
Seeks Legal Advice.
Mr.. Harper then sought legal advice
and in order that there might be no posi-
Itble adverse criticism of his printed mat
ter discontinued the use therein of all the
statements which it had been intimated by
the board constituted a violation of the
act, except that he continued to use the
name Observation-Disclosures food, spelling
the latter word correctly. This name he
continued to use. he said, because his
preparation had been known as Brain
Food for nearly twenty years. and also
because regulation % of the department
itself expressly required that the name of
the preparation should be specifically
stated upon the label.
Mr.. Harper claims that all the charges
in the Police Court information were
based on the use by him of statements in
his printed matter used for years prior to
the hearing of October II. 1907. before the
department. "all of which statements, ex-
cept those involved In the actual name Of
the medicine he had discontinued the use
of. On that information he has been
tried
Reviews Court Rulings.
Then follows review of the trial and
comparison of the character of the wit
| nesses and the evidence. Coming down
to the courts rulings and instructions
to the jury. Mr.. Harper says:
THE court, over the objection of Mr..
Harper's counsel, and at the request of
the United States attorney, instructed the
jury that If they found that he used on
his label the name Brain Food or
'Brane Fude' as part of the name of his
preparation. and there was no food
which nourished the brain as distinct
from the rest of the organs of the body
they were to find him guilty, and re-
fused to permit the jury to consider as
explanatory of the use Of such name
the other statements on the label and in
the printed matter. to the effect that it
was a cure for headache or relief for
headache and Mr.. Harper's disclaimer in
his circular that it was a food; and
charged the jury, over the objection of
Mr.. Harper's counsel, that they had moth
ing to do with the question of whether
the preparation was poisonous in the
doses prescribed or in larger doses; that
| If 1t did contain poisonous ingredients,
whether taken in the doses prescribed on
the label or not. then their verdict must
| be guilty.
Mr.. Harper's counsel had asked the
| court to instruct the jury that if they
doses prescribed on the label, would not
| produce such effects. then they should
find that his statement that his prepara-
ton contained no poisonous ingredients
and was harmless was not false or mis-
leading. This instruction the court re-
fused. although the evidence was that
practically all drugs used medicines
would have harmful and poisonous eff
| fects II taken in excessive doses
| 1.-The instruction of the court upon the
point of the alleged falsity of the guam
tity or percentage of alcohol used in
| the preparation were to the effect that
If Mr.. Harper stated on the label the
maximum or average quantity of alco-
| hol such statement would be in con-
| formity with the law.
Basis of Prosecution.
Under the law Mr.. Harper has per-
| feet right to manufacture and sell his
prepa ration. provided he states upon the
label only the quantity or proportion of
alcohol and acetanilid it contains. This
he has done ever since the act went into
effect. The prosecution of him is based
simply and solely upon the contention
that he advertised his remedy improperly
prior to the hearing of October II, 1907,
before the Agricultural Department.
| ''In view of Mr.. Harpers earnest and
honest effort to comply in all respects with
the pure food and drugs law, and In view
| of the fact that he is the first manufac-
turer prosecuted under it. and his viola
ton of 1t, If he violated it, is of purely
| technical character. it is difficult to see
the justice of the determined effort to in
fluence the court to inf1ict the extreme
penalty of the law. When added to this.
| is the courts own decision which prevent
| ed Mr. Harper from proving that If he
| violated the law, it was done unwittingly
and without the slightest intention to do
so, the injustice of such a course would
seem to be even more apparent"
| Dr. II. w. Wiley. chemist of the Depart
ment of Agriculture. said yesterday that
the first year since the pure food law
| went into effect was largely one of prep
aration but that now the department was
in position to enforce the law rigidly,
l.