The Providence news. (Providence [R.I.]) 1891-1906, 1898-02-14
Says Complaint Against
Him is Defective.
SALE OF IMPURE MILK
Is Charged and He Carried Case 10
Appellate Court.
ARGUMENTS MADE BY COUNSEL.

The appeal OF Milkman William h.
Luthcr was heard In the Appellate Court
this morning Luther was brought Do
fore the sixth District Court In this City
charged with having on July 2lth, 1877,
sold and exchanged aud having In his
possession. with intent to sell and ex-
orange ndulterated milk. to wit milk
which contained more than So per centum
of watery fluids and ltss than IL per
centum OF milk solics. as shown by the
ANALYSIS Ihe defendant admitted suiil-
cient evidence TO convict aud was ad-
Judged trob lily guilty before the District
Court ana appealed 70 the common pleas
division where n motion to quash tho
complaint was denied ana an appeal
taken.
rhough the appeal was taken on six
crouncs. two Of the grounds were abhD-
doneu on account OF the decision or the
court In the case OF state VS.. browne.
lhe fiist ground of the appeal is that the
compliant does not negative possible lnno-
cent sale or possession OF 'aduiterated
milk - nCr does il allegs that the aetend-
.nt was a registered mix dealer. Second.
that selling adulterGted milk and having
sduluerated milk la ones possession with
intent 20 sell or exhaDee The same are not
ccgnate offences. Third. that The Ian
gusge charging offence Is too uncertain
and Indefinite for criminal complaint
and fourth that the complaint omIts 10
set forth that the sample OF milk COM
plaineu OF was deficient I'm milk fats ac-
oording to tho requirement. OF the milk
law.
John w. Hogan. attorney for Luther.
argp ed In suIport of the trst ground thar
the complaint does not sufficiently and
certainly set out any offence under the
laws If this state. That 10 is peferctly
lawful TO sell aud have for sale. "auulter-
ats d milk, provided the dealer who sells
anu uistributes such mix ''shali dis
tinctly marx in letters not less than ono
inch In length. in conspicuous place
above the ceutre, upon the outside OF
every vessel. can or package containing
such milk, the words Skinned Milk, -
md that where a statute In one portion
thereof prohibit In express terms the uOtUg
of an act, and in another portion thereof
prestribes certain conditions wnersby the
doing of an act may be lawful, com
plant for violation of the statute must
negative ell the exceptions. 1t Is plain,
counsel COMMENDED, that every word of tho
complaint might be true, and yet the de-
fendant might pe innocent Of any offence
against tbs law. In regard t1 registration
Mr.. Hogan argued that it was reasonable
to hold that Only registered dealer in
milk shall be snbjset 10 the burden OF sell
th1e only offence known TO our law, of
which man mny be guilty without guilty
knnHlsdge or int,pt
in regard to the matter OF cognate
offence, ~ was submitted that the
offences charged in this count are not
cognate offences. for the defendant can
not tell whether the charge against him
Is for selling and exchanging adnlterated
milk, as alleged in tho first part of the
complaint, or whether the charge is for
having In his possession, with intent To
sell and excfaage. ETC., ahulierated milk,
ms alleged in the latter part Of tha COM
plant.
MIR Hogan argued at considerable
length that the complaint is uncertain in
omltting 10 specify the kind OF analysis
intended therein, for IL was apparent
that the Legislature was informed of
Bnd recognized the distinction between
analyses by weight ana analyses hy
volumsS as II Is expressly proviued in tne
liquor law that the words Intoxicating
iiqcors shall te deemed TO include -. any
liquor which she'll contain more than
Two Ter cent by weight Of slcohoi, while
IL other states the amount Cf alcohol In
fluids. the sils Of which was prohibited
ty law. tho snaly ses Rhall be to deter
mine the volume by volume.
No analysis of milk, counsel contendrd,
was complete and scientific or reliable
unless tho proportion Of milk fats con-
rained therein is determined 10y the pro-
csss of ANALYSIS adopted, but IN this com
plant no allegation was made that the
mple If milk was defieiqnt IL milk
Iats.
Assistant City Solicitor Greenough
WHO representa-, tho chief cf police who
vas comp mpiaiDaDt, argued that the ques-
iOn cf duIliciiy IN regard e. the charge
In the complaint had been pas ed on in
tie cas-, of stats VS.. William I'll. Wood,