it seems he came to the conclusion that it was cows' milk which had been watered by the addition of 15 per cent. of added water, that from such circumstances, in view of the scientific evidence in this case, that you ought to be satisfied beyond any reasonable doubt that the fluid was cows' milk which had been watered by the addition of additional water. Public officers in the execution of a public duty are entitled to the presumption as a presumption of law that they act in good faith and from proper motives, in the absence of any evidence tending to show otherwise; there is no direct evidence that the fluid which Dr. White inspected and tested was skimmed milk, and I think I may say that there is no evidence direct or circumstantial tending to show that that fluid was chemically and skillfully compounded by a skillful chemist; there is no evidence that the fluid was neither cows' milk which had been watered nor cows' milk which had not been watered; after the remarks I have made here during the trial it is hardly necessary to say to you that as to the second count of the indictment—and hence I have been particular in stating what that count charges and what the sanitary code is that it was unnecessary for the prosecution on the part of the people to show that the defendant knew if this fluid was cows' milk that had been watered that he knew it had been watered; I suggest to you whether you are not satisfied from the evidence in this case, this volume of scientific evidence, and I may say some evidence statistical, that the ordinance which should require the Board of Health to prove affirmatively that the milk was watered, and to what amount, amounted to but little. How could they prove it under ordinary circumstances? Now, gentlemen, the general question, of course, is under the second count of the indictment, and I will say a word about the other count in a moment-the general question for you to determine is did the prisoner commit or did he not commit the offense charged in that indictment? I say but little about the evidence, having seen with what attention you have listened to it, and presuming that you can, with precisely as much intelligence as I could, apply the evidence in this case, both scientific and the other testimony, to the questions involved in the determination of this general question of guilty or not guilty on the charge of the second count. I believe there is hardly a man on the jury that does not recollect the evidence better than I do, because I have had other things to think of. Now, I submit the case to you with these remarks. I am tempted to extend them, to make other remarks, and perhaps only tempted because I thought it might be my duty to do so. I submit it to you with full confidence that you see the importance of the questions which may be involved in the determination of the issue formed by the defendant's plea of not guilty to the second count of the indictment. That is all I have to say to you, gentlemen, except so far as I am called upon to say something in pursuance of the requests which are handed up by the prisoner's counsel, and other requests he is going to ask me to charge. Now, the first is to acquit upon the first count in the indictment that there is no evidence that the defendant had knowledge of the adulteration. You will find him not guilty of the offense charged in the first count of the indictment, so that the question you will determine is confined exclusively to the second count in the indictment. The counsel requested me to charge, "First-That to convict the defendant the jury must first be satisfied beyond all doubt that the defendant did at the time and place charged in the indictment, hold, have, or offer for sale milk which had been watered, adulterated, reduced, or changed in some respect." Well, I will charge that, gentlemen, "all doubt," I suppose means reasonable doubt. "Second-That unless the evidence of the prosecution has generated a full belief of the matters charged in the indictment to have been committed by the defendant they must acquit him." Yes, I will charge that, gentlemen. "Third-That unless the jury have a full belief from the evidence of Dr. White that the fluid he tested at the place alleged in the indictment was first, milk, and, second, that it was adulterated by water, they must acquit the defendant." That I will charge, gentlemen, it is substantially what I charged I think. "Fourth— That unless the jury are satisfied beyond any reasonable doubt that at the time of testing the fluid found at the defendant's place of business, he [Dr. White] was qualified, by the evidence of his senses and the test with the lactometer and thermometer, to determine that said fluid was milk adulterated with water, they must acquit the defendant." I will charge that because I suppose he had as good eyes and as acute smell and taste: we have got to assume that, I suppose. "Fifth-That unless you are satisfied that the method adopted by Dr. White, by which he reached the conclusion that the article found at the defendant's place of business was adulterated milk is accurate to determine whether it was adulterated milk, and generates a full belief in your minds that the same was adulterated milk, you must acquit." I will charge that, gentlemen. "SixthThat neither a mere preponderance of evidence nor any weight of preponderant evidence is sufficient for the purpose of conviction in this case unless it generates a full belief of the guilt of the defendant to the exclusion of all reasonable doubt." That I will charge, gentlemen; I think I have substantially charged it. Mr. WAEHNER—I request you to charge in addition to this that the statement of the counsel for the prosecution to the effect that four hundred thousand quarts of milk are daily brought to New York, and to that is daily added one hundred thousand quarts of water is not evidence, and should have no weight with the jury; it has not been proved. The COURT-Gentlemen, I charge you, that your verdict in this case should be from the evidence, and the law as laid down by the Court. You cannot look, and ought not to look to any statement by either counsel outside of the evidence in the case. Mr. WAEHNER-Furthermore, right in that connection, I ask you to say to the jury that the statements of counsel with reference to the trial or the result of other cases is not evidence, and should be disregarded. It falls under the same ruling. The COURT-It certainly does. Mr. WAEHNER-I desire to submit a very important proposition to your Honor, and refer you to an authority. "That if the tests made by the prosecution in this case upon the question whether the fluid found at defendant's place of business was adulterated milk furnished only questionable evidence of adulteration, it should not be regarded by the jury as sufficient to warrant a verdict of guilty; and if the jury find that analysis would remove the doubt and be necessary for the purpose of removing the doubt, it (analysis) should have been made and proven." The COURT-I decline to do that; take an exception. Mr. WAEHNER-I except to your Honor's refusal to charge that proposition; I ask your Honor to charge that the testimony given on this trial establishes that analysis can be made and would be the surest test. The COURT-I decline to charge that; take your exception. A JUROR-Have they a right to put ice in the milk to transport it that season of the year, August? The COURT-I have read you the law; if the ice waters the milk Mr. WAEHNER-The statute gives permission to do so; they have a right to put ice in the milk. Mr. PRENTICE-No, sir. The jury retired, and after an absence of 45 minutes, returned with the following verdict: Guilty of the offense as charged in the second count of the indictment, and not guilty of the offense charged in the first count of the indictment. Mr. WAEHNER-We ask your Honor to defer sentence in this matter to give us an opportunity to argue a motion in arrest of judgment. The COURT-You may state any grounds you choose to have on the record. Mr. WAEHNER-We move an arrest of judgment upon the ground that the indictment is defective in this: First. That it is defective in joining substantially in one count two distinct offenses; that the second paragraph of the indictment, designated as the second count, is defective in not alleging and stating a further and separate presentment by the Grand Jury of a distinct offence. Secondly. Upon the ground that the indictment fails to state that the sanitary code therein referred to is a code applicable to and governing the city of New York; that that code was confirmed as required by the act of 1873, the charter of 1873, section 82, by the new Board of Health coming in office under that act, and that the original code of ordinances are not alleged to have been published as required by law, the act of 1866, and all the acts amendatory of it, the act of 1867, and that it does not appear upon the face of the indictment that the ordinance proven, namely, section 186, was adopted by the Board of Health of the Health Department of the city of New York; that it was ever published as required by law, and that, so far as the indictment is concerned and the proof given thereunder, there are two ordinances bearing upon this question; one is section 45 of the sanitary code, and the other section 186. I think that is all the grounds I desire entered on the record; also upon the ground I should say this—and that presented another question of law-that the Board of Health of the Health Department of the city of New York have no power to pass either ordinances section 45 or section 186, they being in conflict with the act of 1864. The COURT-That is not a ground in moving an arrest of judgment, because it does not appear on the face of the indictment; no matter; you have got it on the record. Mr. WAEHNER-Your Honor denies my motion and note an exception. The COURT-Yes, sir. The defendant was asked the usual questions before sentence was passed. Mr. WAEHNER-As far as punishment is concerned, there is nothing vindictive about this. The COURT-I do not think it can be said there is any evidence that you knew that the milk that you are charged with keeping as watered milk was watered, but in view of the very great importance of the questions which have been discussed on this trial, which I may say was involved in the question whether you should be convicted or not, I think, I ought to pass a sentence which would satisfy you and your friends that it is best not to come here to be tried. I never have tried a more important question in the view I take of it than the question of your guilt. It would seem at first, however, it was rather a harsh law that you should be convicted of keeping watered milk when you did not know it was watered, but I can see plainly that unless that law can be enforced I do not see how the Board of Health is going to protect the public against watered milk. The idea, considering the quantity of milk that comes to this city, that they must resort to analysis and have a skillful chemist to analyze the milk would be very impracticable it appears to me. There are any number of acts of Parliament where the British subject is absolutely prohibited from keeping a certain article, and in a case which I read it was very learnedly discussed |