The New York herald., 1921-06-10
Third LIQUOR TRIAL
BY JURY is FAILURE
Vote Stands z to 5 for Ac-
quittal in Case Of Third
Avenue Bartender.
PROSECUTION TO GO ON
No Intention Of Asking Gov
ernor to Urge Change in
Law-Will Fight and Hope.

Joab H. Banton, Chief Assistant Dis
trict Attorney, said yesterday that he
would continue to present liquor in
dictments to the courts for trial by
jury, although the failure to obtain a
conviction in three cases In as many
days indicates that the Mullan-Gag
prohibition laws have fallen down so
far as convicting alleged violators is
concerned
There will be no change in pro-
cedure or policy on the basis Of these
failures" said Mr.. Banton. II have
no intention Of asking Gov. Miller for
an extra session Of the Legislature to
modify the laws requiring that alleged
violators of the dry laws have jury
trials"
Mr. Bantons statement was made at
the conclusion of the trial OF Thomas f..
Mcdonald. bartender in a cafe in
11S1 Third avenue, who was arrested on
April charged with Illegal possession
of liquor. The jury disagreed after de-
liberatins for hours and 20 minutes,
the final vote standing z to for acquit-
tai On Tuesday and Wednesday the
trials of Charles Dicl<man. a bartender,
and James McWalters. saloonkeeper.
resulted In acquittals. McWaiters. how
ever. was arrested again soon after he
left the court room, and was held In $500
hail for the action of the Grand Jury.
He went TO the Criminal Courts Build
ing from the Harlem Police Court to
obtain Liberty bonds which had been
nosted as bail in the first case against
him 10 use as bail in his second case.
Justice Henry v. Borst, appointed by
Gov. Miller to sit in an EXTRAORDINARY
term of the Supreme Court for the trial
of liouor cases, told reporters. after the
trial of Mcdonald yesterday. that he
wished to make an explicit denial or ru-
mors that he intended to inform the
Governor that trial by jury In prohtbi-
ton cases u futile
Il conceive It to be my duty TO sit IN
the trial of these cases." he said. II
any action is deemed necessary or wise
for a change in the law u Is not my
function now to suggest such changes 10
the Governor. Such recommendation, IN
nv opinion, would come from the DIE
tr.ct Attorney.
Gov. Miller was not in Albany yester-
day. but close advisers do not believe
he would consider calling an extra SEES
sion of the Legislature to amend the
Nfullan-Gage laws II the request were
made by New York county officials.
Patrolmen Robert e. Morris ard
James T. Brady Of the Fourth Inspec-
ton district testified that they entered
the cafe where Mcdonald was enployed
at 1880 p. NJ. They said Mcdonald had
a cocktail shaker In his hand, and that
when ne saw the patrolmen he attempted
to spill its contents into water tank
behind the bar. Morris seized the shaker.
according to his testimony, and saved
part OF the liquid and poured II into
bottle for evidence. A city chemists
analysis pronounced the liquid contained
rs per cent. alcohol.
Mcdonald made a general denial OF
the charges.
at is a case OF deliberate perjury on
one side or the other" said Justice Borst,
referring TO the testimony OF patrolmen
and bartender In his charge to the jury.
THAT is a question, gentlemen. for you
to decide"
Justice Borst held up the bottle con-
tanning the States evidence and re-
marked: III you have any doubt
whether this Is whislSey OF not you may
take II to the jury room. open II and
smell II. or test II in any other way.