§ 519. Analyst Appointed by the Court.

In the prosecution of a defendant for selling adulterated food the court has a discretion to permit the defendant to have an analysis made of the product claimed to be adulterated; but a showing should be made of the necessity or propriety of granting the right, and the analysis, if ordered, should be under the supervision of the court, by a chemist appointed by it.1 Inability should be shown to otherwise

1 Breckenridge v. State, 3 Ohio v. Breckenridge, 7 Ohio N. P. 663, N. P. 313, 4 Ohio L. D. 389; State 5 Ohio S. & C. P. Dec. 546. make a defense than by analysis as to the ingredients of the article in question.2

§ 520. Samples and Certificate of Analysis Under English Food and Drugs Statute-Statutory Provision.

The English Sale of Food and Drugs Act of 18751 provides that "any purchaser" of an article of food or of a drug may have it analyzed by the analyst appointed for the district in which it is purchased, upon paying certain fees. This certificate is made sufficient evidence of the facts therein stated, unless the defendant shall require that the analyst shall be called as a witness, and the parts of the article retained by the person who purchased the article shall be produced. If the official analyst's certificate shows that the article sold was adulterated, he may bring an action against the vendor to recover a penalty in the place where the article was actually delivered to the purchaser. So any medical officer of health, inspector of nuisances, or inspector of weights and measures, or any inspector of a market, or any police constable, "under the direction and at the cost of the local authority appointing such officer, inspector or constable, as charged with the execution" of this statute, "may procure any sample of food.

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2 State v. Breckenridge, supra. It is said that the analysis should be conducted in the presence of the expert who made the analysis for the State.

138 and 39 Vict., ch. 63, § 12. 2 38 and 39 Vict., ch. 63, § 21. 3 38 and 39 Vict., ch. 63, § 20.

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or drugs, and if he suspect the same to have been sold to him contrary to any provision" of this statute, "shall submit the same to be analyzed by the analyst of the district or place for which he acts."4 This statute also provides as follows: "The person purchasing any article with the intention of submitting the same to analysis shall, after the purchase shall have been completed, forthwith notify the seller or his agent selling the article his intention to have the same analyzed by the public analyst, and shall offer to divide the article into three parts, to be then and there separated, and each part to be marked and sealed or fastened up in such manner as its nature will permit, and shall, if required to do so, deliver one of the parts to the seller or his agent. He shall afterwards retain one of the said parts for future comparison, and submit the third part, if he deems it right to have the article analyzed, to the analyst. Another section provides that: "If any such officer, inspector or constable," "shall apply to purchase any article of food or any drug exposed for sale, or on sale by retail on any premises, or in any shop or stores, and shall tender the price for the quantity which he shall require for the purpose of analysis, not being more than shall be reasonably requisite, if the person exposing the same for sale shall refuse to sell the same to such officer, inspector or constable, such person shall be liable to a penalty not exceeding ten pounds." The justices before whom the case is brought may, upon the request of either party, in their discretion, cause the article of food under consideration to be sent to the Commissioners of Inland Revenue, who thereupon must direct the chemical officers of their department at Somerset House to make an analysis of the article, and give a certificate of the result."

4 38 and 39 Vict., ch. 63, § 13. 5 38 and 39 Vict., ch. 63, § 14. 638 and 39 Vict., ch. 63, § 17. 738 and 39 Vict., ch. 63, § 22. The statute does not make this particular certificate conclusive, although, as a matter of practice, it naturally carries very great weight.

If there be substantial evidence on the other side, it is not conclusive, it is clear. Fyfe v. Hamilton, 1 Adam 484; Todd v. Cochrane, 3 Adam 357, 38 Sc. L. R. 801. See Dargie v. Dunbar, 11 Rettie (J. C.) 37, where a majority of the judges held that this Somerset House cer

§ 521. When Certificate Not Evidence.

Only in the particular instance specified is the certificate of the analyst evidence. Thus if it is made evidence in a prosecution under one section of a statute, it is not evidence in a prosecution under another section. And so where a statute made the certificate evidence in an action against a retailer of goods, it was held not admissible in an action against a wholesaler.2

do

§ 522. Form of Analyst's Certificate Under English Statute. The following form has been provided by rules and regulations of constituted authority under the English statute: "To (give name of person submitting article for analysis): "I, the undersigned, public analyst for the hereby certify that I received on the .... day of 19...., from (here insert name of the person delivering the article), a sample of for analysis (which then weighed ......), and have analyzed the same, and declare the result of my analysis to be as follows:

........

"I am of opinion that the same is a sample of genuine-[or, I am of opinion that the said sample contained the parts as under, or the percentages of foreign ingredients as under

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'As witness my hand this

tificate was not admissible in evidence. "But this view would certainly not be followed by an English court." Bell's Sale of Food and Drugs Act (5th Ed.), p. 73.

1 People v. Schintzius, 61 N. Y. Misc. 410, 113 N. Y. Supp. 313; Regina v. Smith [1896], 1 Q. B. 596, 60 J. P. 372, 65 L. J. M. C. 104, 74 L. T. 348, 44 W. R. 492, 18 Cox C. C. 307.

This form has been repeatedly before the English courts, and a number of decisions have been made with reference thereto. The weight of the sample need not be stated unless such weight is material to the accuracy of the analysis.3 Under the section making it an offense to mix, color, stain or powder any article of food with any ingredient or material so as to render the article injurious to health, with the intent that it may be sold in that State, the form given above is sufficient, and it need not state that the article was injurious to health. The certificate should state whether any change had taken place in the article analyzed before the analysis, and a failure to do so is fatal to the prosecution based on the certificate, and the defect can not be cured by oral evidence. Where the charge was a sale of whisky adulterated with thirteen percent of water in excess of the proper amount, and the analyst's certificate ran as follows: "I find the sample contains an excess of water over and above what is allowed by Act of Parliament. I estimate the excess of water at thirteen percent of the entire sample. I am of opinion that the said sample is not a sample of genuine whisky." the court held the certificate was too vague. As it stood, it did not disclose any offense; for aught that appeared to the

and may state whether in excess of what is ordinary, or otherwise, and whether the ingredients or materials mixed are or are not injurious to health. In the case of a certificate regarding milk, butter, or any article liable to decomposition, the analyst shall specially report whether any change had taken place in the constitution of the article that would interfere with the analysis." Taken from Bell's Sale of Food and Drugs Act (5th Ed.) 88.

2 The certificate of the analysts of the government (Somerset House) laboratory need not be in this form. Foot v. Findlay [1909],

1 K. B. 1, 72 J. P. 494, 78 L. J. K. B. 48, 99 L. T. 798, 25 T. L. R. 10, 6 L. G. R. 1129.

3 Sneath v. Taylor [1901], 2 K. B. 376, 65 J. P. 548, 70 L. J. K. B. 872, 49 W. R. 719; Hunter v. Wintrup, 7 Fraser (J. C.) 22, 4 Adam 471, 42 Sc. L. R. 277.

4 Hull v. Horsnell, 68 J. P. 591, 92 L. T. 81, 21 T. L. R. 32, 20 Cox C. C. 759, 2 L. G. R. 1280.

5 Hunter v. Wintrup, 7 Fraser (J. C.) 22, 4 Adam 471, 42 Sc. L. R. 277.

6 Peart v. Barstow, 44 J. P. 699; Hudson v. Bridge, 67 J. P. 186, 19 T. L. R. 369.

contrary, the analyst might not have known of the Act which determined the amount of lawful admixture. It was impossible to tell what was the excess of water until it was known what was the quantity exceeded. The certificate ought to have stated the total amount of water found in the sample. Where the certificate was, "I am of opinion that the said sample contained the percentage of foreign ingredients as under: 5 percent of added water to the prejudice of the purchaser," it was held that this certificate was bad as evidence of adulteration, because it did not state the constituent parts of the sample analyzed, and that, in such a case as this, the constituent parts should be stated. "If the analyst found in the milk," said the court, "some material substance which ought not to be found in milk at all, it would be sufficient for the certificate to state that the sample . contained

so much percent of foreign ingredient; but when the magistrates have to decide whether the sample contained added water, the question becomes much more difficult, because water is to be found in milk in its purest state.

I think the magistrates are entitled to inquire-and the Legislature intended they should have a statement in such a case as this of the parts of which the sample was composed. To say merely that the sample of milk contained five percent of added water is only to state the analyst's own opinion that water has been added. The magistrates have to exercise their own judgment on the question; they ought to be informed what is the total percentage of water." Again: "Where the thing said to be added is one of the constituents of the article analyzed alyst... must state the facts on which he has come to his conclusion sufficiently to enable the magistrates to come. to a conclusion themselves. In a subsequent case this case

7 Newby v. Sims [1894], 1 Q. B. 478, 58 J. P. 263, 63 L. J. M. C. 228, 70 L. T. 105. In Fortune v. Hanson [1896], 1 Q. B. 202, 60 J. P. 88, 65 L. J. M. C. 71, 74 L. T. 145, 44 W. R. 431, 18 Cox C. C. 258, was a deficient cerPURE FOOD-40.

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tificate. The case of Bakewell v. Davis [1894], 1 Q. B. 296, 58 J. P. 228, 63 L. J. M. C. 93, 69 L. T. 832, can not well be reconciled with these two cases.

8 Fortune v. Hanson [1896], 1 Q. B. 202, 60 J. P. 88, 65 L. J.