
    COURT OF SPECIAL SESSIONS — CITY OF NEW YORK,
    April 24th, 1913.
    THE PEOPLE v. DR. KELLY MEDICAL COMPANY.
    •(1.) Publishing untrue and misleading advertisements — Section 421, Penal Law — Motion for a Bill of Particulars.
    Where an information sets forth the advertisement claimed to be in violation of this section in full, and negatives the representations therein set forth, as to the advertised product being a scientific combination of remedies, and harmless, the prosecution is not required to designate in the information wherein and whereby the said product is harmful, and a motion for a bill of particulars made by defendant should be denied.
    ■(2.) Same.
    A defendant who publishes an advertisement regarding the efficacy of a medicinal product alleged to be harmful and deleterious, having put such representations before the world, must be assumed to have been fully prepared to maintain “ every statement or assertion of fact. * * * intended to give the appearance of an offer advantageous to the purchaser ”, and cannot be embarrassed in preparing for trial or subjected to any unreasonable surprise, because of the failure of the prosecution to set forth in the information particulars as to the harmful or deleterious character of its product.
    Hons. Moses Herrman, James J. Mclnerney, and Joseph M. Deuel.
    Hon. Charles S. Whitman, District Attorney, with Floyd H. Wilmot and Frederick Sullivan, Assistants, for The People.
    Messrs. Whiteside and Stryker for the Defendant.
   Deuel, J.

The defendant moves for a bill of particulars on the ground that a plea of not guiltly to the information does not frame issues sufficienty definite to enable counsel to prepare for trial, or thereat to avoid unreasonable surprises.

The prosecution is under section 421 of the Penal Law the subhead of which is “ untrue and misleading advertisements.”

The information sets forth the entire advertisement — a sixteen page pamphlet — of a discovery by Dr. Kelly during a period of “ specialized study ” in quest of a specific for physical imperfections in herself wherein she claims to have succeeded. She also states that the remedy has proven equally efficacious with female patients similarly afflicted. It is a medicine to be taken internally and it has been given the commercial name of “ Form Developer.”

The law in question denounces as a misdemeanor the act of any person, firm, corporation or association, who, by any means of advertising, u knowingly makes or disseminates any statement or assertion of fact concerning the quantity, the quality, the value, the method of production or manufacture, or the reason for the price of his or their merchandise * * * intended to give the appearance of an offer advantageous to the purchaser which is untrue or calculated to mislead.” (Sec. 421, P. L.)

The advertisement concludes with a professional testimonial by a physician who declares it to be a “ a valuable formula for the purpose intended * * *' a scientific combination of remedies that will enrich the blood * * is absolutely harmless * * * is admirably designed to build up the general health as well as increase the development.” These representations are negatived in the information by its concluding averment, as follows:

“Which said statement of fact was calculated and intended to mislead the purchaser into believing that said offer was an offer advantageous to the purchaser in that, by means of a purchase of the said product such purchaser would acquire a scientific combination of remedies beneficial in the manner aforesaid, and harmless. Although the said Dr. Kelly’s Form Developer was not a harmless product, as the said defendant then well knew.”

In deciding the motion, the first step is to determine what specific question is presented by a plea of not guilty. And this depends upon whether the district attorney’s pleading is construed strictly or liberally. If the former sole question is: is the advertised developer absolutely harmless? This, seemingly, is the view of defendant’s counsel, who insisted that the People should be required to designate wherein or whereby the product is harmful, and on the oral argument the Court was inclined to take his view.

Liberally construed the district attorney’s “ which said statement of fact ” is resolvable into two representations, at least: (1) is the “ developer ” a scientific combination of remedies beneficial in the manner claimed for it; (2) is it harmless ?

It may not be a scientific combination of remedies but a compound of harmless ingredients incapable of producing any noticeable effect on the human system and, therefore, a fraud; beyond which the district attorney, doubtless, would not proceed. On the other hand it may be a scientific combination of remedies but publicly prudent only when administered on the advice and sanction of a skilled physician; a probable menace to health when used indiscriminately. Harmless means incapable of doing harm. Thus there are two possible issues of fact and the burden is .on the People to prove either or both as the district attorney may select.

Under all the circumstances, it is difficut to see how the defendant can be embarrassed in preparing for trial or, at it, be subjected to any unreasonable surprise. When it put the representations complained of before the world, thereon seductively appealing to credulity and giddiness and inviting indiscriminate use of its product, it must be assumed that it was fully prepared to maintain each and every “ statement or assertion of fact * * * intended to give the appearance of an offer advantageous to the purchaser.” Its officers then knew what medicative ingredients entered into the “ combination,” and the exact proportions of each. It is alleged to have been discovered by one physician while prosecuting a specialized study. It is certified to contain all the virtues claimed for it by another physician who must have been minutely informed of each constituent part, or ascertained them hy quantitative analysis, for he certifies it to be “ a valuable formula for the purpose intended; ” formula as used being “ an expression by means of symbols and figures of the constituents of a compound.”

The Court must assume that if there be a single vulnerable point in any of the representations made for the purpose of stimulating trade, no one can know it quite so well as the defendant. If there be more than one, the defendant must be likewise informed. It should be ready, upon any reasonable notice, to defend before the Courts what it has so profusely and seductively placed before the world.

The Court has approached the subject from two view points; protection of the defendant from any technical disadvantage and economy of judicial time in the matter of a needlessly protracted trial. At best it promises to be a battle between chemical and medical experts, and to narrow the issues down to the most reasonable and rational limit is a proper incentive. The law involved is comparatively new, and the application for a bill of particulars in a criminal action is somewhat novel. The omniverous editors of Cyc were able to find but one successful application in this State. (People v. Bellows, 2 N. Y. Crim. Rep. 12.) Possibly one reason why citations are so few is that the question is addressed wholly to the discretion of the Court, and is not appealable.

I find nothing before us to bring this case within the reasoning of Judge Brady in the case against Bellows. He said:

“ The defendant should be advised of the accusation against him with sufficient certainty to enable him to prepare for his defense. There is no good reason why such a requirement should not be enforced. Each person accused of crime should be given the benefit of every reasonable opportunity to prepare for his defense, and to prove his innocence ”.

The accusation in the present case is that the defendant publicly advertised its compound to be “ a scientific combination of remedies and harmless; ” the district attorney says it is not. This gives a reasonable opportunity to prepare for any attack on such public representation, and trial surprises are scarcely conceivable.

The defendant, reliant upon its publicly advertised representations, should welcome this prosecution as its most remunerative advertisement.

I am in favor of denying the motion.

All concur.  