§ 557. Brands. When the statute requires brands to be placed upon boxes containing food, it does not necessarily mean that the letters shall be burned into the box; it is enough that the letters be placed upon the package in a legible and distinct manner, as by a stencil plate and chisel.1 1 Dibble v. Hathaway, 11 Hun 571. There is nothing peculiar about a sale of unwholesome food. Such a sale does not differ from a sale of any other article, so far as is necessary to make a complete sale. In one instance it has been held that the unwholesome food sold must be paid for before there can be a conviction;1 but such is not the true rule, for a sale on credit is as much a sale as one for cash. Perhaps illustrations of what has been held to constitute a sale of food will be more satisfactory than any discussion of the general principles of sales. Thus a milk dealer, whose father owned a milk route, carried the milk to the customers; the defendant and another employee knowingly adulterated the milk with water while on their way to distribute it to such customers; and the defendant 1 Heider v. State, 4 Ohio Dec. 227. handed one of the cans of adulterated milk from the wagon to his co-employee, who delivered it to the purchaser. This was held to be such a sale by the defendant as rendered him liable.2 The delivery of milk to the purchaser of a table d'hote breakfast, as a part of the meal, is as much a "sale" of the milk as if a special price had been put on it, or it had been bought and paid for by itself. Where one G was not shown to have ordered, advised, approved, or had knowledge of a sale of oleomargarine by another not under his, G's, control without being properly printed or branded, it was held that G could not be convicted of the alleged wrongful sale of the oleomargarine. The defendant, it was shown in one case, took local orders for a butter substitute from individuals, and sent them to some manufacturer outside the State; the orders were then filled and marked for the several individuals, but were consigned together in care of the defendant, who thereby secured a minimum freight rate; the orders were filled at the local market price, but by an agreement with the defendant the manufacturer made out an account for each order to the person giving it, charging therein the amount of the price to the defendant, freight at the rate of single orders, and a charge for delivery by the defendant, who received and forwarded the money. was held that the sales were made by the defendant.5 A grocer sent his soliciting agents into another county, where he had no license, and took orders there for oleomargarine, which orders were accepted at his store, and the oleomargarine shipped to the customer not in his name, but in care of the agent, and it was taken by the agent from the railroad agent and delivered to the customers. It was held that the grocer could not be convicted in the county where the or 2 Commonwealth v. Haynes, 107 Mass. 194; People v. Teele, 131 N. Y. App. 87, 115 N. Y. Supp. 212. 3 Commonwealth v. Warren, 160 Mass. 533, 36 N. E. 308; Commonwealth v. Vieth, 155 Mass. 442, 29 N. E. 577; Commonwealth v. Miller, 131 Pa. 118, 18 Atl. 938, 25 Wkly. N. C. 137; People v. Fox, 4 N. Y. App. Div. 38, 38 N. Y. Supp. 635. 4 Goll v. United States, 166 Fed. 419, 92 C. C. A. 171. 5 State v. Newell, 140 Mo. 282, 41 S. W. 751. ders were taken, since the sale was consummated in the county where the grocer had his grocery." Where a statute made it an offense to "manufacture or cause the same to be done with intent to sell, or shall sell, or offer to sell," any adulterated wine within the State, an agent for a winehouse located in another State, who took orders for adulterated wine in the State of its enactment, and procured the transportation of the wine directly to the purchaser in the State where he took the orders, was held guilty of a violation of its provisions. Where adulterated milk was taken to a cheese factory, which from day to day was put into a common vat with the milk of other patrons, and made into cheese, which was sold and the money therefor apportioned among the patrons according to the amount of milk each had delivered, after deducting expenses, it was held there was neither a sale nor exchange of the milk. Where State inspectors merely testify that, when they stopped the driver of a truck carrying milk, he stated that he was then on his way to deliver the milk to certain places in the city, and there was no proof that it was ever delivered there or anywhere, it was held that no sale was shown." 8 But a consummated sale to an inspector is as much a sale as to a private individual, and if illegal, subjects the seller to the penalty inflicted by the statute.10 Yet where it appeared that the defendant declined to accept pay from the agent of the State for a sample which he knew was intended for chemical analysis, and finally only accepted some payment on his persuasion, such facts were held not to show a sale.1 11 6 Commonwealth v. Gardner, 16 Montg. Co. Law Repr. 171. 7 Myer v. State, 10 Ohio Cir. Ct. Rep. 226. 8 Flander v. People, 4 Alb. L. Jr. 316. 9 People v. McDermott, 38 N. Y. Misc. Rep. 365, 77 N. Y. Supp. 888. 10 People v. Greenberg, 134 N. Y. App. 599, 119 N. Y. Supp. 325. In this case it was held that the statute applied to jobbers and middlemen. 11 Dinkelbihler v. State, 7 Ohio Dec. 99, 4 Ohio N. P. 96. An officer of a corporation testified to sales of uncolored oleomargarine to the defendant, based on the charge tickets, which he testified were the original entries, and § 559. Knowledge of Adulteration of Milk. In prosecutions for the sale of adulterated milk, or keeping for sale, it is no defense that the accused had no knowledge it was adulterated; and it need not be alleged or proven that he had such knowledge, in the absence of special words in the statute requiring the sale to be made with knowledge of the adulteration. In such instances knowledge is not an affirmative element in the offense.1 In a New York case the statute2 made the simple omission of things directed or commission of things prohibited evidence of the violation of the Act. This provision was held to render the act of sale of adulterated milk without knowledge of its adulteration an offense. In speaking of the provision, the court said: "There also that drafts were drawn on defendant for each shipment, all of which, as shown by the company's ledger, had been paid. An officer of the bank through which the drafts were drawn testified as to passage through the bank. This was held to show a payment for the oleomargarine. Hart V. United States, 183 Fed. 368. 1 Commonwealth v. Nichols, 10 Allen 199; Commonwealth v. Farren, 9 Allen 489; State v. Smith, 10 R. I. 258; Isenhour v. State, 157 Ind. 517, 62 N. E. 40, 87 Am. St 228; People v. Friedman, 138 N. Y. App. 29, 122 N. Y. Supp. 500; affirmed 200 N. Y. 591, 94 N. E. 1096; Commonwealth v. Granstein & Co. (Mass.), 95 N. E. 97. The same rule applies to sales of intoxicating liquors. Commonwealth v. Boynton, 2 Allen 160; Commonwealth V. Goodman, 97 Mass. 117; Commonwealth v. Hallett, 103 Mass. 452. So a sale of naphtha. Commonwealth v. Wentworth, 118 Mass. 441; State v. Schlenker, 112 Iowa 642, 84 N. W. PURE FOOD-45. 698, 51 L. R. A. 347; Myer v. 2 Acts 1885, ch. 458, § 17. |