108 ANNUAL, REPORT OF THE Off. Doc. 



Powell, 23 Sup. Ct. 372, a bill of particulars in a criminal case is not 

 a matter of right, but is only an appeal to the sound discretion of 

 the court. My recollection is that in some of the pure food indict- 

 ments in cases tried in this Court there was simply an alleg-ation in 

 the indictment that the pure food act had been violated, without 

 specifying the particular violation. I am inclined to think that 

 that indictment was perfectly good. We have our Act of Assembly 

 which simply provides that an indictment shall be deemed sufficient 

 which simply follows the words of the Act of Assembly, and if this 

 indictment had simply followed the words of the Act of Assembly, 

 and been in the general form with which we found other indictments 

 we would feel it but right and proper that the Commonwealth 

 should specify the particular article of food which was supposed to 

 be adulterated, and at least specify in a general way how that 

 particular article of food was adulterated; but in the present in- 

 stance the particular article of food is specified, to wit, chocolate, 

 and there is a general statement as to how it is adulterated. I think 

 we will all agree on a moment's reflection that the rulings of the 

 appellate courts on this subject are perfectly right and proper. 

 The authority cited by Mr. Baldridge is not an analagous authority 

 at all. In the first place, as stated by Mr. Woodward, the i>hysica^ 

 examination to which the plaintiff is compelled to subject himself is 

 always made — and I am speaking only as to the orders of — is always 

 in the presence of the physician of the plaintiff. I have drawn 

 frequent orders compelling plaintiffs in damage cases to submit to 

 physical examinations, but I am always careful to provide that the 

 physician of the plaintiff" should be present so that no unfair advant- 

 age could be taken of the plaintiff, and that everything that was 

 done there was done in the presence of the physician of the plaintiff". 

 But it seems to me that the endeavor to liken a civil proceeding to 

 a criminal proceeding is falacious, and that is the vice of the offer. 

 In a civil proceeding the plaintiff may be compelled to subject him- 

 self to a physical examination. At the same time he has the mutual 

 and co-ordinate right of compelling defendant to disclose his case. 

 Not so in a criminal case. The defendant can hold all the papers 

 in his possession, and there is no power to compel him to produce 

 them. He can sit on the witness stand and say I have a paper at 

 home, and the Court is powerless to make him produce evidence to 

 establish his guilt. That is one reason. In the second place a 

 civil suit is tried on the weight of the evidence. Each party comes 

 in with an equal i-ight to be heard as to the measure of proof, but in 

 a criminal suit the burden is on the Commonwealth to establish the 

 case beyond a reasonable cloubt and these maxims of ours about the 

 reasonable doubt that the jury must come to the firm, unv>'avering 

 conviction that the defendant is guilty, have come to us from times 

 when judges were wont to hang a num for stealing a loaf of bread. 

 Now I do not say in the present criminal procedure that we should 

 get away from these old maxims, but I do say that while we adhere 

 to those old maxims, which we adopted when they hung men foi- 

 stealing a loaf of bread, such maxims ousiht not be applied against 

 the Commonwealth on the one side and then on the other hand the 

 Commonwealth be compelled to disclose all their case, and the 

 absence of precedent to my mind is strong proof that there is no 

 warrant for a Court compelling the Commonwealth to submit their 

 eviden(3e m advance to the defendant. It does seem to me that the 



