posted 08-19-2011 10:11 AM            

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Sterling Law Case On Trial.

First Jury Trial Under the old Sterling Law of New York State.

The first case under the old New York Sterling law. Sec. 364a of the Penal Code, to be tried by a jury came up yesterday morning in Part II., of the Court of General Sessions, in New York city, and resulted in an acquittal.

The case has been pending in the courts for over a year and, as frequently noted in these columns, was adjourned time and time again at the request of the defendant's counsel, but was finally forced to trial yesterday. The defendant, Chas. K. Duschnes, who does a catalogue business in E. 14th St., was arrested early in 1897 on the complaint of Newton Dexter, who charged him with selling rings marked "sterling" that were not .925 pure silver. They assayed respectively .223, .256 and .250. This and the similar case against Albert F. Jammes came up together yesterday, but Jammes, being in Europe, was not tried.

Duschnes' counsel tried to have his own case postponed until that of Jammes* was tried, but Judge Fitzgerald refused to grant his request and the trial commenced.

Mr. Dexter was the first witness for the prosecution. He testified that he purchased the rings by the number in the catalogue issued by the defendant, and that he paid $2.70 for a half dozen. The District Attorney then handed him one of the rings which Dexter identified. Mr. Dexter then stated that all the rings except the one placed in evidence were destroyed by the process of assaying and that the other rings were exactly like the exhibit. Mr. Dexter further stated that besides the word "sterling" the rings bore the mark "F. B.," which he recognized as being a manufacturer's mark employed by Flint. Blood & Co.. Providence. R. I. On cross examination Mr. Dexter said that he had no business experience with the defendant other than that related; that he was employed by no silversmith or silversmiths in the prosecution of persons violating the silver stamping law, and that he did not act in the interest of any firm in securing evidence against and procuring the indictment of the defendant. The question as to what was his real motive was objected to by the District Attorney and the objection was sustained by the Court. The defense then endeavored to show that the action should, in fact, have been brought against Flint, Blood & Co., the manufacturers, and not the defendant; but the witness showed that such procedure would have been impracticable. It then became apparent that the defense would rest largely on the plea that whatever amount of silver was found in the rings it was .925 fine and that the sale of the rings was therefore not in violation of any law.

The next witness called was Geo. R. Cummings, assayer in the United States Assay office in Wall St., who stated that he had 24 years' experience as an assayer of gold and silver; that on May 26. 1897. he received from Newton Dexter two rings to be assayed: that the one was found to be .223 and the second .256 fine; that the rings were heavy articles with a stone set in the top of each. On cross-examination, Mr. Cummings described the process of assaying in detail, and was finally asked by the defense to state if such silver as was found in the rings was .925 fine. The District Attorney's objection to the question was overruled and the witness insisted that he could not say whether such silver as was in the rings was .925 fine or not, but emphatically declared that he knew the articles were not .925. He also could not say of what base metal the rings were composed. On hammering, he asserted, the rings were discovered to be composed of more than one metal. After undergoing this hammering they were placed in a small tub, melted, and then assayed by the regular assaying process.

The next witness to be called was Herbert G. Torrey, United States Assayer. whose testimony was to the effect that on May 5, 1898. he received from Mr. Dexter one ring for the process of assaying it to ascertain its fineness. He like Mr. Cummings said the ring was marked "sterling" and bore the initials "F. B.." the meaning of which he did not profess to know.

Then the question of solder was brought up for the first time. Mr. Torrey was asked by the defense whether before assaying the ring he removed the solder holding the stone which was set on the top. Mr. Torrey replied that there was no solder to be removed, as the supposed stone was nothing but glass, which precluded the use of solder, since glass cannot be soldered. On cross-examination Mr. Torrey was asked whether he had assayed the silver ware upon the quality of which the indictments of Hilton, Hughes & Co., Bloomingdale Bros, and other department stores were framed, and whether he had ever before been employed to testify against dry goods firms, both of which questions were objected to by the District Attorney and the objections were sustained by the Court.

Upon the claim that a "shell ring" need not assay .925 the defense moved that action against the defendant be dismissed since there was no evidence adduced to show that such silver as was contained in the rings sold by the defendant to Mr. Dexter was not .925 fine. The motion was denied and an exception taken. The defense then moved that the action be dismissed because the indictment was framed before the addition to the silver law now in force went into effect. This motion was also denied after argument.

The prosecution then called James Henry Buck, of the Gorham Mfg. Co.. whose testimony was chiefly that of an expert character, the prosecution wishing to show that the definition of the word "sterling" when stamped upon silver was so clearly understood among the trade that it could not possibly be perverted. Mr. Buck first told of his extensive experience and knowledge of the subject of silver ware, and then gave testimony to the effect that the term "sterling" stamped upon silver meant that the article so stamped consisted of 925 parts pure silver and 75 parts alloy. Here the case for the prosecution rested.

The attorney for the defense said defendant was inexperienced in the business, being engaged in it only since February, 1897; that he bought the rings from Flint. Blood & Co. with a written guarantee. The defendant then took the witness chair. He testified that his business was done mainly on mail orders; that he carried but very little stock, ordering goods as he would receive orders for them through the mails; that he had no knowledge of the fineness of silver ware; that he entered the business in which he is now engaged on Feb. 20. 1897. having formerly been engaged in the dry goods business, and before that employed as a salesman; that from the time of entering into business until Mr. Dexter's visit in May, 1897, he had sold only about $10 worth of rings and that he had received no complaints. He knew for an absolute fact, he stated, that Flint, Blood & Co. had caused their rings to be assayed, showing that such silver as was contained in them was .925 fine. The District Attorney's request that he identify the ring placed in evidence, he refused to comply with on the ground that he could not swear that he sold it or that he did not sell it. He said that he knew what the word "sterling" was "generally supposed to mean." and that what he understood it to be generally supposed to mean was that the component parts of a silver article must be .925 fine; that in the case of the articles he sold to Mr. Dexter the silver was the component part.

Answering a question put by Judge Fitzgerald, if. according to his definition oi the word "sterling," an article which consisted of 900 parts lead and 100 parts silver could be called a sterling silver article, the defendant answered that "any one who could see the difference between white and black would see such an article was not silver, and that it would be a swindle to sell a ring consisting of 900 parts lead and 100 parts silver as a sterling silver ring." He then stated his idea of what he supposed a "shell ring to be and also asserted that the manufacturers. Flint. Blood & Co., had told him the stones with which the rings were studded were soldered into them. The Court then ordered a recess of one hour.

At the opening of the afternoon session counsel for the defendant addressed the jury, beginning by saying that the real complainant was the Gorham Mfg. Co. and the defendants. Flint, Blood & Co. He began befogging the issue by telling the jury that "sterling" meant "pure." and that nothing could be made of pure silver; therefore, there was no such thing as sterling silver! There was no proof, he said, that the rings assayed were the rings purchased from the defendant. The component part of a ring, he said, was the principal part of the ring, i.e., the silver, and under the statute only the silver in the ring should be .925 fine. He continued in this strain to try to confuse the jury as to the real issue, going into details of soldering, definition of sterling, etc.. and wound up by saying they should not convict.

Assistant District Attorney Walsh summed up for the prosecution, starting by giving an outline of the facts. The sale and the marking of the ring were un-contradicted. The question at issue was: Was or was not the ring composed of .925 pure silver? On this point they had the evidence of the assayers of the United States Assay office. The question of the defendant's knowledge of the condition of the ring was not in issue, the law making him liable whether he knew or not.

Judge Fitzgerald's charge was brief and to the point. The indictment, he said, charges specific things and the only questions for the jury to decide were: Did or did not the defendant do the specific things? Was the sale made? Was the word "sterling"' stamped upon the rings sold? Did that word denote the article was .925 fine? If so, were the rings .925 pure silver? These were the questions to be decided. He briefly reviewed the evidence on these points and the jury then retired. They returned in about a quarter of an hour with a verdict of not guilty.

The verdict in this case does not disturb in any way the law as amended by the New York Legislature last session. The amended law would have covered every point raised by the defense which seemed to have had some weight with the jury.

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