hence a sale, or intended sale, for food should be averred." In another case a statute came under review which made it an offense to "knowingly barter, give away, sell or have in his possession with intent to sell, any substance injurious to health." The defendant was charged with having "in his possession, with intent to sell the same, a certain substance intended for food, to wit, one pint of milk then and there adulterated with a certain substance injurious to health, to wit, formaldehyde." The defendant sought to show what representations had been made to him concerning the use of formaldehyde in the milk which he had purchased and which he had in his possession with intent to sell, as charged in the indictment. The court held it was error to exclude this evidence, as the trial court had done. "While the possession of milk recently adulterated with a substance injurious to health," said the court, "required appellant [the defendant] to show affirmatively that such adulteration was without his knowledge, yet, he was entitled to the fullest opportunity to do so. If in fact he had no knowledge, and had a sufficient excuse for want of knowledge, he was entitled to show it. The law will not permit the State to construct about the defendant a circumstantial case, and then deny him an opportunity to explain the circumstances consistently with his innocence. If appellant used the preserver, honestly believing, after making reasonable inquiry and investigation, that it contained no formaldehyde or other substance injurious to health, then he was not guilty of knowingly,' etc. What he did to ascertain the fact about it, who he inquired of, what was said to him by others in whom he might reasonably confide, what was exhibited to him, in writing or printing, and the trustworthiness thereof, were all proper subjects to lay before the jury in explanation of his assertion that he did not, at the time, know the milk contained a substance injurious to health; and if the facts he was thus able to show should be sufficient to overcome the presumption of guilty knowledge raised by the 4 Schmidt v. State, 78 Ind. 41.

possession, it would have been the duty of the jury to acquit."' Where it is an offense to expose meat for sale that is unfit for food, the offense is committed by the exposure of such meat although the person exposing it was unaware that it was unfit for food."

§ 562. Lack of Knowledge of Adulteration Lessening

Penalty.

Although a sale of adulterated food without knowledge of its adulteration is no offense, unless the statue makes knowledge of the adulteration an element of the offense, yet the defendant is entitled to show that fact as bearing upon the amount of penalty to be assessed against him; for it is reasonable that one who wilfully violates a statute should be assessed with a greater penalty than he who inadvertently violates it. Of course, this rule can have no application where the statute fixes the exact amount of penalty to be assessed upon proof of a violation of its terms.1

§ 563. Article Sold to the Prejudice of Purchaser-Actual Damage.

An English statute makes it an offense to sell "any article of food or any drug which is not of the nature, substance and quality of the article demanded by such purchaser," "to the prejudice of the purchaser."" A misrepresentation concerning the article of food or drug, or a failure to disclose by proper label or notice its true constituent elements is considered a sale "to the prejudice of the purchaser." Under this statute the question has arisen as to whether, in order to show that the article was sold to the prejudice of the purchaser it is necessary to prove that the purchaser had

5 Isenhour v. State, 157 Ind. 517, 62 N. E. 40, 87 Am. St. 228. See also People v. Fulle, 1 N. Y. Cr. Rep. 172.

6 Hobbs v. Winchester Corporation, 79 L. J. K. B. 1123 [1910], 2

K. B. 271, 102 L. T. 841, 74 J. P. 413, 8 L. G. R. 1072, 26 T. L. R. 557.

1 People v. Secor (N. Y. App.), 113 N. Y. Supp. 487.

138 and 39 Vict., ch. 63, § 6.

suffered actual prejudice or damage. In one case it was held that an official purchasing an article of food as a sample for analysis, and not for consumption, or at his own expense, could not be prejudiced by the purchase; but in another case the opposite view was taken, and the seller held liable. In the latter case Judge Mellon said: "If a purchaser, whoever he may be, gets an article inferior

to that which he demands and pays for, it seems to me that he is necessarily prejudiced within the meaning of the section [of the statute]. . The real offense is the fraudulent sale of an article adulterated so as to be of an inferior nature, etc., to that which is demanded and paid for. The necessity for the words 'to the prejudice of the purchaser' is this: but for those words various absurdities might arise. The sale of an article of a superior nature or quality to that demanded, would be an offense." Judge Lush also said: "What is the meaning of 'prejudice'? It can not be confined to pecuniary prejudice, or prejudice arising from the consumption of unwholesome food. The prejudice is that which the ordinary customer suffers, viz., that which is suffered by any one who pays for one thing and gets another of inferior quality. The words 'to the prejudice of the purchaser' are necessary, because if they had not been inserted, a person might have received a superior article to that which he demanded and paid for, and yet an offense would have been committed. The result is, that it is never necessary to prove any actual damage to the purchaser in order to obtain a conviction under this statute, and that the words 'to the prejudice of the purchaser' are only inserted to prevent such an absurdity as a prosecution for selling a better article than the one demanded."" It is not

2 Davidson v. McLeod, 42 J. P. 43, 5 Rettie (J. C.) 1, 3 Coup. 511.

8 Hoyle v. Hitchman, 4 Q. B. Div. 233, 43 J. P. 431, 48 L. J. M. C. 97, 40 L. T. 252, 27 W. R. 487.

As a result of these two decisions

Parliament adopted a statute declaring that it should not be a defence that the article of food or drug was purchased for an analysis. 42 and 43 Vict., ch. 30, § 2.

4 Hoyle v. Hitchman, supra. See also Pearks, Gunston & Tee

V.

necessary for the purchaser to request the dealer to furnish him with a pure and unadulterated article of food; for when he asks the dealer for food there is a tacit implication that there is a request for a pure article. "A man who asks for 'milk' prima facie asks for normal milk from the cow. There was no need for the purchaser buying milk from a milkman on his rounds to add any descriptive adjective or to demand that the milk should be of any standard or quality."

§ 564. The Article Demanded-Sale to Prejudice of Purchaser.

An English statute makes it an offense to "sell to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance, and quality of the article demanded by such purchaser."" In construing this section the words "nature, substance, and quality" can not be disjoined, and the article sold must be different in all three respects from the article demanded. As the statute was intended to strike only at foreign admixtures, the very nature of the substance must be altered, or the offense contemplated can not be committed." "The article demanded" is the article known commercially under that name. Thus a merchant sold as gin a liquid composed of 26 percent of alcohol, 70 percent of water, and 4 percent of sugar. It was proved that gin was sold by retailers at a strength varying

Ward [1902], 2 K. B. 1, 66 J. P. 774, 71 L. J. K. B. 656, 87 L. T. 51.

A sale "to the prejudice of the purchaser" takes place when the purchaser is supplied with an article containing but little of the article of food he demanded. Rider v. Freebody, 24 Vict. L. R. 429, 20 Aust. L. T. 115, 4 Aust. L. R. 251.

The fact that the purchaser was informed of the adulteration immediately after he had paid for the article and before the vendor and

he had separated, will not relieve the vendor of the penalty of the statute. Rider v. Bachus Marsh, etc. Co [1905], Vict. L. R. 147, 26 Aust. L. T. 156, 11 Aust. L. R. 37.

5 Kench v. O'Sullivan, 10 N. S. W. 605, 27 W. N. (N. S. W.) 137, denying the soundness of Lane v. Collins, 14 Q. B. Div. 193, 49 J. P. 89, 54 L. J. M. C. 75, 52 L. T. 257, 33 W. R. 365.

1 38 and 39 Vict., ch. 63, § 6.

2 Davidson v. McLeod, 42 J. P. 43, 5 Rettie (J. C.) 1, 3 Coup. 511.

from proof to 20 degrees under proof. This liquid was 44 degrees under proof, and although the analyst said he should call it gin whose alcoholic strength was exceedingly low, the justice trying the case convicted the vendor. The High Court upheld the conviction, saying: "This was not an article of the nature, substance, and quality of the article demanded by the purchaser. The justices have come to the conclusion that a mixture of alcohol and water so far as 44 percent below proof is not of the quality of gin as known commercially. It is impossible for us to say that they were wrong. In another case a grocer was prosecuted for selling a variety of tapioca as sago. The justices found that the public and the trade generally knew this substance as sago, and that there was no appreciable difference in cost between the two. It was held that no offense had been committed. If the article demanded has no recognized standard of quality or composition, it is no offense against this statute to sell an article which does not come up to a particular standard. In another case, speaking of a sale of cream, the court said: "The article demanded and supplied was cream. It was admitted that it contained no foreign admixture or adulteration, but it was cream of an inferior quality to that ordinarily sold in Glasgow. Cream is not an article having any standard of quality. It varies with the character of cows from which milk comes and the food on which they are fed. This was genuine cream though of inferior quality. It appears to me that a sale in such a case was not an offense within the Act at all. In the present case the article demanded was milk; that supplied was milk and water. It was an adulterated article."" So the sale of an inferior, though pure, quality of cream at a low

3 Pashler v. Stevenitt, 41 J. P. 136, 35 L. T. 862.

4 Sandys v. Rhodes, 67 J. P. 352. 5 Roberts v. Leeming, 69 J. P. 417, 3 L. G. R. 1031; Wilson v. McPhee, 68 J. P. 175, 6 Fraser (J. C.) 10, 4 Adams 310, 41 Sc. L. R. 195.

6 Referring to Davidson v. McLeod, supra.

7 Hoyle v. Hitchman, 4 Q. B. Div. 233, 43 J. P. 431, 48 L. J. M. C. 97, 40 L. T. 252, 27 W. R. 487.