THE JUDGE'S CHABGE. 267 



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 gen- 

 erates a full belief in your minds that the same was adulterated 

 milk, you must acquit." I will charge that, gentlemen. " Sixth 

 That 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 defend- 

 ant 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 furnish- 

 ed 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 neces- 

 sary 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 



