Stunz v. United States

• Decision Date: 02 July 1928
• Docket Number: No. 8006.,8006.
• Citation: 27 F.2d 575
• Parties: STUNZ v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

27 F.2d 575 (1928)

STUNZ v. UNITED STATES.^*

No. 8006.

Circuit Court of Appeals, Eighth Circuit.

July 2, 1928.

Henry L. Jost, of Kansas City, Mo. (Fred S. Hudson and Glenn C. Weatherby, both of Kansas City, Mo., on the brief), for plaintiff in error.

S. M. Carmean, Asst. U. S. Atty., of Kansas City, Mo. (Roscoe C. Patterson, U. S. Atty., of Kansas City, Mo., on the brief), for the United States.

Before KENYON, Circuit Judge, and SYMES and MARTINEAU, District Judges

SYMES, District Judge.

The defendants below, Harold M. Stunz, his wife, father, and two brothers, were jointly indicted and tried in the District Court of the United States for the Western District of Missouri, on 18 counts for fraudulent use of the mails. Counts 6, 8, and 10 were nolled. Harold M. Stunz was convicted on all the remaining counts. The other defendants were acquitted.

The first 10 counts charge the defendants with having devised a scheme to defraud, and use of the mails in connection therewith, in selling a medical preparation known as "Korex"; counts 11 to 14, inclusive, allege a similar scheme, and use of the mails, in selling a preparation called "Hiobin"; and counts 15, 16, 17, and 18 allege a fraudulent scheme to promote a so-called kidney pill, "Renex." The defendant was sentenced, and is here on writ of error.

Count 1 alleges the defendants falsely represented: That they were the owners of large and well-equipped laboratories, and that Korex, which they compounded and manufactured, was their own discovery. That it was "a scientific home treatment of superiority, as proved by wide use. A wonder treatment that restores flagging vital forces, has been perfected through many years of scientific research. This wonder home treatment is `Korex,' a vegetable compound. * * * It contains no harmful drugs or opiates. * * * Physicians say it gives speedy satisfaction in cases that defy other treatments. Elderly people pronounce the discovery a real `fountain of youth.'" Likewise, that it produced amazing benefits in 24 to 36 hours, and restored lost and depleted vigor, and "you can avail yourself of a discovery which men in their 60's, 70's, and 80's declare has renewed their vigor, awakened their glands, and made them `young' again." That these statements were made with intent to deceive the public generally, and particularly any person who might receive them in the form of oral statements, circulars, letters, etc., knowing that each and all the said representations, statements, and promises were wholly false and fraudulent at the time of making the same, and that in order to carry them out they unlawfully placed and caused to be placed in the post office of the United States a certain letter, signed by the defendant, containing the said representations.

Counts 2, 3, 4, 5, 7, and 9 are similar, except that a different letter is exhibited in each. Counts 11 to 14, inclusive, contain the same general allegations in respect to the remedy Hiobin. Counts 15 to 18, inclusive, omit the alleged representations as to laboratories, etc., and charge that defendants, by oral statements, circulars, etc., falsely represented they were the distributors of Renex, which was designed to "get at the causes" of kidney, bladder, and prostate trouble, and Bright's disease; that it was a high-grade, scientific product, not a patent medicine, and would relieve and cure those particular ills, as well as liver and bowel troubles.

The trial consumed several days. The record is unusually long, the testimony being set out verbatim, contrary to the expressed wishes of this court. Marr v. U. S., 8 F.(2d) 231. The evidence in behalf of the government tended to show that in the latter part of 1921 defendants, operating from Kansas City, Mo., began to advertise the so-called "Melton Laboratories." Two years later they adopted the name Renex Company, and beginning in August, 1924, called themselves the Hiobin Company.

Korex, which was composed of yeast vitamines, extract nux vomica, yohimbin hydrochloride, and lecithin, was sold by defendants through the mails for 2½ years. It was then replaced by "Hiobin," which was exploited as a specific for the same ailments. Its ingredients were the same as Korex, with the addition of a small quantity of iron peptonate and phenolphthalein. These preparations were at all times the property of the Stunz family, and extensively advertised. All three preparations were obtained from wholesale drug houses, nor were any laboratories of any consequence maintained. So far, the government's story is not disputed.

The government next called several reputable physicians and pharmacists of varied professional experience, who stated that in their opinions — and they were permitted to express them very freely over defendants' objections — the ingredients in question were well known in medicine, of doubtful therapeutic value, occasionally prescribed by the profession, and of some slight value as stimulants, and, finally, that these preparations were harmless, of no real or permanent value in cases of so-called lost manhood, and positively could not make the old young, sexually or otherwise; that yohimbin, the principal ingredient, and lecithin, another ingredient of both Korex and Hiobin, had been thought to be efficient in cases of functional impotency, premature senility, etc., but that this belief had, in the light of experience, been discarded several years ago.

Other evidence tended to show that Stunz was not an expert in therapeutics, and did not know of his own knowledge what the medical effect of his remedies might be in any particular case. It was admitted, however, that in some cases distinct benefits — temporary and psychological only — might be obtained by users who were in a receptive frame of mind, as a result of reading defendants' literature. Renex, the so-called kidney remedy, contained, according to the prosecution, ingredients of some slight value in kidney troubles.

Over objection of defendants, testimony was given tending to show that the business was very profitable. The use of the mails is not denied.

Defendants' medical experts stated that distinct beneficial effects resulted, if Korex and Hiobin were regularly used for the disorders indicated in the advertisements; "that they might be reasonably expected to restore sexual powers within normal limits;" that Renex was "an excellent formula for irritation of the kidneys and bladder." Numerous testimonials, solicited and unsolicited, were offered, most of which appear to be genuine.

Among the exhibits are samples of the flamboyant advertisements, circular letters, etc., put out by the defendants. This matter is most extravagant, being made up of, and consisting mostly of, statements of impossible benefits certain to follow the use of these remedies. It was represented therein that a cure would positively follow their use within a very short time, etc. Details of particular cases were given. For instance, one Glasscock — who says he was 75 years old and a mental and physical wreck — claimed to have been permanently restored to the vigor and suppleness of the prime of life. Others, that they received surprising benefits in from 24 to 48 hours, and regained the physical power they had possessed at 30 years of age, etc.

A difficult question is presented by defendants' motions to discharge the jury on account of newspaper articles published during the trial. The first of these was presented when the jury was completed, and refers to articles in two local papers, of November 13th and 14th, respectively. The motions were renewed on the 17th, based this time on an article published in a local evening paper of the preceding evening. Copies of the newspapers, together with affidavits of four jurors, accompanied the motions. The affiants stated that they had read the articles in question. It was also shown that various members of the jury had been seen in possession of copies.

These articles purported to outline the government's case, the methods employed in gathering the evidence, and quoted extensively from the government's opening statement to the jury. They referred to the government's side only. The only testimony printed verbatim was a reproduction in part of the advertisements admittedly carried by defendants in various newspapers. It is not claimed that the government in any way aided or encouraged these publications. The court, in denying the motions, called attention to the fact that it would hardly be practicable to discharge a jury in every case that the press might discuss or comment on during the course of the trial.

Moreover, the court on more than one occasion specifically told the jury to disregard all this, and neither in the affidavits, nor in the record, does it appear that the jury was in any way influenced thereby. Only one out of the several defendants was convicted, although all were given equal prominence in the papers. Defendants' motion was for a continuance only, and not for a...