Dilley v. the People.
| Decision Date | 31 March 1879 |
| Citation | 4 Bradw. 52,4 Ill.App. 52 |
| Parties | THOMAS DILLEYv.THE PEOPLE. |
| Court | United States Appellate Court of Illinois |
ERROR to the Circuit Court of Henry county; the Hon. A. A. SMITH, Judge, presiding. Opinion filed May 2, 1879.
Messrs. KENWORTHY & BEARDSLEY, for plaintiff in error; that it was proper to give in evidence the contents of a memorandum book kept by a witness, to impeach the testimony of the witness, cited Nor. Line Packet Co. v. Binninger, 70 Ill. 571; Craig v. Rohrer, 63 Ill. 325; 1 Greenleaf's Ev. § 462; 2 Phillips' Ev. 963.
As to instruction that jury may disregard testimony if they believe the witness has sworn falsely upon a material fact, except so far as he is corroborated by credible witnesses: Crabtree v. Hagenbaugh, 25 Ill. 233; Meixell v. Williamson, 35 Ill. 529; Huddle v. Martin, 54 Ill. 258; C. & A. R. R. Co. v. Buttolf, 66 Ill. 347; Peak v. The People, 76 Ill. 289; Gulliher v. The People, 82 Ill. 145; Angle v. Faul, 85 Ill. 106.
Mr. C. DUNHAM and Mr. T. E. MILCHRIST, for defendant in error; as to the instructions, cited Kendall v. Brown, 86 Ill. 387; T. W. & W. R'y Co. v. Ingraham, 77 Ill. 309; Gisler v. Witzel, 82 Ill. 322; Belden v. Woodmansee, 81 Ill. 25.
As to the affidavit of newly discovered evidence: Gottschalk v. Hughes, 82 Ill. 484; Murphy v. McGrath, 79 Ill. 594; Bowers v. The People, 74 Ill. 418; Emory v. Addis, 71 Ill. 273; Champion v. Ulmer, 70 Ill. 322; Cowan v. Smith, 35 Ill. 416.
At the October term of the Circuit Court of Henry county, the plaintiff in error was indicted by the grand jury for the offense of adulterating milk with water for the purpose of selling the same, and for selling milk, knowing it to be adulterated with water.
The indictment contained twenty counts, the first ten of which charged the plaintiff in error with the offense of adulterating milk for the purpose of sale. The last ten counts charged him with the offense of knowingly selling milk adulterated with water to Messrs. Gilbert & Baum, proprietors of a cheese factory in the community where he resided. Upon a trial of the cause in the court below, a jury returned a verdict of guilty on the first and eleventh counts, and not guilty on the other counts. Upon the verdict the court gave judgment for $400 fine, and that the defendant stand committed until the fine and costs were paid. The plaintiff in error sued out a writ of error, and brings the record to this court (by agreement) and asks a reversal of the judgment in the court below on numerous grounds, only part of which do we deem it necessary for us to consider.
At the trial in the court below, it was disclosed, that the milk alleged to have been adulterated was hauled to the factory of Gilbert & Baum by Morris Caddigan, their employee, and that it was delivered to him by the defendant at his residence, to be so taken to the factory--being about six miles distant from the factory.
On the trial the court, at the instance of the plaintiff's counsel below, gave the jury the following instruction, being numbered three in the series asked by them:
That “If you believe, from the evidence, that from the 30th day of July to the 16th day of August last, the defendant sold to Gilbert & Baum a large quantity of milk, and delivered the same to the witness Caddigan, to be delivered to Gilbert & Baum at their cheese factory, and that said milk was delivered to said Gilbert & Baum, at their cheese factory in the same amount, quality and condition as when taken by said Caddigan; and that upon its delivery at the factory it was tested for water by a thermometer and lactometer and other tests; and that the lactometer is an instrument generally used by cheese makers...
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