remains no reasonable doubt of the legislative meaning and the constitutional power to so enact we distinctly opine. The prudence of its exercise may be debatable but it is not indefensible. It is meritorious that the adulteration of food products has grown to proportions so enormous as to menace the health and safety of the people. Ingenuity keeps pace with greed, and the careless and heedless consumers are exposed to increasing perils. To redress such evils is a plain duty but a difficult task. Experience has taught the lesson that repressive measures which depend for their efficiency upon proof of the dealer's knowledge and of his intent to deceive and defraud are of little use and rarely accomplish their purpose. Such an emergency may justify legislation which throws upon the seller the entire responsibility of the purity and soundness of what he sells and compels him to know and to be certain. In a Pennsylvania case it was said of a statute with regard to the sale of oleomargarine: "The prohibition is absolute and general. It could not be expressed in terms more explicit and comprehensive. The statutory definition of the offense embraces no word implying that the forbidden act shall be done knowingly or wilfully, and, if it did, the design and purpose of the act would be practically defeated. The intention of the Legislature is plain that persons engaged in the traffic shall engage in it at their peril, and they can not set up their ignorance of the nature and qualities of the commodities they sell as a defense.'' If the milk be below the standard, it is no defense that it was just as it came from the cow, and the defendant did not know of its low grade. But a statute, by the use of words, such as selling or offering for sale adul

3 People v. Kibler, 106 N. Y. 321, 12 N. E. 795; People v. Cipperly, 101 N. Y. 634, 4 N. E. 742, 37 Hun 323.

4 Commonwealth V. Weiss, 139 Pa. 247, 21 Atl. 10, 23 Am. St. 182, 11 L. R. A. 530, note. So in Indiana, Isenhour v. State, 157 Ind. 517, 62 N. E. 40, 87 Am. St. 228;

Strong v. State, 2 Ohio N. P. 93,

3 Ohio Dec. 284; Bissman v. State, 9 Ohio Cir. Ct. Rep. 714; State v. Kelly, 53 Ohio St. 667, 43 N. E. 163.

5 People v. Bosch, 129 N. Y. App. 660, 114 N. Y. Supp. 65; Commonwealth v. Vieth, 155 Mass. 442, 29 N. E. 577.

terated milk, knowing it to be such, makes knowledge of the adulteration an ingredient of the offense, and it must be averred and proven."

§ 560. Ignorance of Adulteration of Food.

Whether or not a knowledge of the adulterated or unwholesome condition of the article of food sold or offered for sale is necessary to render the vendor liable to a statute prohibiting the sale of adulterated or unwholesome food depends upon the wording of the statute. Thus where it is made an offense to sell adulterated food, and the statute does not use the word "knowingly" in connection with the word "sell," there are many cases (as we have seen in the next preceding section concerning sales of milk), which hold that it is not necessary to the violation of the statute that a sale shall be made knowing at the time that the article sold is adulterated or unwholesome. A mere sale of such food in the utmost ignorance of its condition constitutes the offense and renders the vendor liable to a penalty. Thus

6 Sanchez v. State, 27 Tex. App. 14, 10 S. W. 756; Cantee v. State, 10 S. W. 757; Commonwealth v. Flannelly, 15 Gray 195; Verona Central Cheese Co. v. Murtaugh, 50 N. Y. 314.

Where it need not be averred that the defendant knew the milk he sold was adulterated, if it be averred he had such knowledge, that fact need not be proven. Commonwealth v. Farren, 9 Allen 489.

In a prosecution for selling adulterated milk an instruction that if the accused sold milk to A, and delivered to his servant, who delivered it to A in the same condition in which he received it from the accused, and that it was then found by satisfactory tests that the milk was adulterated, the accused was guilty, is erroneous, for the milk

may have been adulterated when received from accused, and still he may not have done it, or have had any knowledge of it. Dilley v. People, 4 Bradw. (Ill.) 52.

1 Newton v. Connell, 9 N. J. L. Jr. 316; Waterbury v. Newton, 50 N. J. L. 534; People v. Schaeffer, 41 Hun 23; People v. Mahaney, 41 Hun 26; Bissman v. State, 9 Ohio Cir. Ct. Rep. 714; Myer v. State, 10 Ohio Cir. Ct. Rep. 226; Myer v. State, 3 Ohio Dec. 198; Strong v. State, 3 Ohio Dec. 284, 2 Ohio N. P. 93; State v. Kelly, 54 Ohio St. 166, 43 N. E. 163; Commonwealth v. Weiss, 139 Pa. St. 247; 21 Atl. 10, 27 Wkly. N. C. 182, 23 Am. St. 182; State v. Roger, 95 Me. 94, 49 Atl. 564; People v. Hillman, 58 N. Y. 571, 69 N. Y. Supp. 66, 15 N. Y. Cr. Rep. 394;

where a statute prohibited the sale of any substance made in imitation of yellow butter and not made exclusively of cream or milk, it was held that the prosecution need not prove, on the trial for a violation of the statute, that the defendant had knowledge that the compound sold by him was not made exclusively of milk or cream or intended to deceive the purchaser. So the intention to imitate the color of natural butter need not be shown in a prosecution to prohibit the sale of oleomargarine manufactured in imitation of natural butter, for it is immaterial.3 In such an instance the dealer can not shield himself by showing his ignorance in regard to its character. Nor is evidence of the habitual good character of the defendant admissible." "The distribution of impure or adulterated food for consumption," said the Supreme Court of Indiana, "is an act perilous to human life and health; hence, a dangerous act, and can not be made innocent and harmless by the want of knowledge or the good faith of the seller." Continuing the

Betts v. Armstead, 20 Q. B. Div. 771, 52 J. P. 471, 57 L. J. M. C. 100, 58 L. T. 811, 36 W. R. 720 16 Cox C. C. 418; People v. Snowburger, 113 Mich. 86, 64 Am. St. 449, 71 N. W. 497; Pain V. Boughtwood, 24 Q. B. Div. 353, 54 J. P. 469, 59 L. J. M. C. 45, 62 L. T. 284, 38 W. R. 428, 16 Cox C. C. 747; Dyke v. Gower [1892], 1 Q. B. 220, 56 J. P. 168, 61 L. J. M. C. 70, 65 L. T. 760, 17 Cox C. C. 421; Morris v. Corbett, 56 J. P. 649; Spiers and Rand v. Bennett [1896], 2 Q. B. 65, 60 J. P. 437, 65 L. J. M. C. 144, 74 L. T. 697, 44 W. R. 510, 18 Cox C. C. 332.

2 State v. Rogers, 95 Me. 94, 49 Atl. 564.

8 People v. Hillman, 58 N. Y. App. Div. 571, 69 N. Y. Supp. 66, 15 N. Y. Cr. Rep. 394; People v. Mahaney, 41 Hun 26.

4 State v. Rippeth, 71 Ohio St. 85, 72 N. E. 298; People v. Meyer, 44 N. Y. App. Div. 1, 60 N. Y. Supp. 415; State V. Ryan, 70 N. H. 196, 85 Am. St. 629, 46 Atl. 49; State v. Cornish, 66 N. H. 329, 330, 21 Atl. 180, 11 L. R. A. 191; State v. Campbell, 64 N. H. 402-405, 13 Atl. 585; Commonwealth v. Uhrig, 138 Mass. 492; Commonwealth V. Savery, 145 Mass. 212, 13 N. E. 611; State v. Smith, 10 R. I. 258; State v. Hughes, 16 R. I. 403, 16 Atl. 911; Lansing v. State, 73 Neb. 124, 102 N. W. 254; Groff v. State, 171 Ind. 547, 85 N. E. 769; Altschul v. State, 8 Ohio Cir. Ct. Rep. 214.

5 Commonwealth v. Kolt, 13 Pa. Super. Ct. Rep. 347.

6 Groff v. State, 171 Ind. 547, 85 N. E. 769; State v. Engle, 156 Ind. 339, 58 N. E. 698; Commonwealth v. Gray, 150 Mass. 327, 23 N. E.

court said: "Guilty intent is not an element of the crime; hence, the rule that governs in that larger class of offenses, which rests upon criminal intent, has no application here. Cases like this are founded largely upon the principle that he who voluntarily deals in perilous articles must be cautious how he deals.""

§ 561. Ignorance of Adulteration of Food, Continued.

A statute may interject the element of knowledge into the commission of an offense in the sale or exposing for sale of adulterated food; and when that is the case, knowledge of the qualities of the food by the vendor must be shown before he can be convicted.1 Thus a statute which provides that every person who shall willfully sell or offer for sale. the flesh of any calf less than four weeks old when killed

shall be fined makes knowledge an essential element of the crime defined by it; and it is error for the court to charge that by "willfully selling" was meant deliberately selling, without regard to the defendant's motive." So on a prosecution for selling adulterated molasses, it was held that the accused could show that he purchased it believing it to be pure, and in good faith sold it as such without intent to deceive. There are also decisions which hold knowledge an element of the crime, although the words "knowingly" or "willfully" be not used in defining the crime. In Indiana a statute provided that "Whoever kills, for the purpose of sale, any sick, diseased or injured animal, or who sells or has in his possession with intent to sell, the meat of any such sick or diseased or injured animal, shall be fined." An indictment charged that the defendant "unlawfully had in his possession, with intent then and there to sell the same the meat of certain sick, diseased or injured animals, to wit: the meat of certain hogs." The Supreme Court held this affidavit insufficient, because it did not charge that accused had knowledge of the character or bad quality of the animals or meat, and that it was not enough to charge the offense in the language of the statute. "We are clear that by the statute in question," said the court, "it was not intended to punish acts done in ignorance of the character or deleterious quality of the animals or meat. Before a conviction can be had under the law, then, it must appear that the animals were killed for the purpose of sale for food, or the meat sold or had in possession with intent to sell for such purpose, and that the accused had knowledge of the bad qualities of the animals or meat." Then speaking of the indictment, it said: "The language of the statute here is general, but it was intended to include those only who had knowledge; hence knowledge must be averred. So the language is general in repect to the purpose of sales, or intended sales, but the intention was to prohibit sales for food;

2 State v. Nussenholtz, 76 Conn. 92, 55 Atl. 589.

3 Kelly v. State, 1 Ohio N. P. 238, 2 Ohio Dec. 239.