purpose. On the other hand it has been held that the use to which the purchaser intended to put veal was not an element of the offense prescribed by a statute forbidding knowingly selling, or having in possession with intent to sell, the meat of a calf killed when less than four weeks old.2 Yet when a statute forbade the sale or offer to sell as an article of food any oleaginous substance other than those produced from unadulterated milk or cream, designed to take the place of butter or cheese, it was held necessary to aver in an indictment for selling an oleaginous imitation of butter that it was sold as an article of food. Still it has been held that upon a charge of selling unwholesome beef, it was not error for the court to refuse to charge the jury that, if they find the beef was bought as an article of merchandise, and not for domestic consumption, they must acquit. A sale of food for analysis is as much an offense as a sale of it for consumption." § 567. Special Contract as to Quality of Goods. A statute of England provides that "No person shall, with intent that the same may be sold in its altered state without notice, abstract from an article of food any part of it so as to affect injuriously its quality, substance, or nature, and no person shall sell any article so altered without making disclosure of the alteration." Attempts have been made to evade the provisions of this section by special contracts be 1 Schmidt v. State, 78 Ind. 41. It is to be observed that a strong dissent is taken from this view of the law. 2 Commonwealth v. Raymond, 97 Mass. 567. 3 State v. Fayette, 17 Mo. App. 587. 4 People v. Parker, 38 N. Y. 85, 97 Am. Dec. 774. That it must be alleged the article manufactured was manufactured as an article of food, where PURE FOOD-46. the statute made it an offense to manufacture oleomargarine as an article of food, see Commonwealth v. Callahan, 12 Pa. Co. Ct. Rep. 170; Commonwealth V. Schollenberger, 1 Pa. Dist. Rep. 437, 153 Pa. St. 625, 25 Atl. 999; Commonwealth v. Schmidt, 13 Pa. Co. Ct. Rep. 28. 5 State v. Rippath, 71 Ohio St. 85 72 N. E. 298. 1 38 and 39 Vict., ch. 63, § 9. tween vendors and purchasers concerning the quality of the article to be delivered by the former, but unsuccessfully. Thus a milk producer contracted to supply milk to a workhouse at a certain price. By the contract the milk was to contain a certain percentage of cream, and it was to be tested on each delivery, and a reduction was to be made in the price in respect of any deficiency in cream. When the daily supply, contained in five cans, was being delivered, the respondent, acting under the statute, procured a sample from each of the five cans, and subsequently laid information in respect of two of the samples, in which they were found to be a large deficiency of cream. It was held that the provisions of the contract concerning the deficiency of cream was immaterial in the determination of the question whether the milk producer had committed an offense under the section quoted.2 § 568. Purchaser having Knowledge Food is Adulterated. It is no defense to an action to recover the statutory penalty for adulterating food that the complainants knew it was adulterated when they used it.1 § 569. Offered for Sale. Exposing for sale and offering for sale are distinct acts; and usually made distinct offenses. Thus we have seen that keeping oleomargarine in a closed and covered refrigerator was not an exposure of it for sale.1 But where it was an offense to offer oleomargarine for sale unless it was plainly 2 Featt v. Walsh [1891], 2 Q. B. 304, 55 J. P. 726, 60 L. J. M. C. 143, 65 L. T. 82, 39 W. R. 525, 17 Cox C. C. 322. In the prosecution of a sale of oleomargarine under the New York statute, the gist of the offense is the sale of oleomargarine manufactured or produced "in imitation or semblance of natural butter," rather than deceit in the sale of the article. People v. Teele, 131 N. Y. App. 87, 115 N. Y. Supp. 212. 1 Lammond v. Volens, 14 Hun 263. See also Rider v. Bachus Marsh, etc. Co. [1905], Vict. L. R. 147, 26 Aust. L. T. 156, 11 Aust. L. R. 37. 1 Commonwealth v. Byrnes, 158 Mass. 172, 33 N. E. 343. marked so as to establish its true character, it was held not necessary to prove any overt act of offering for sale in an unidentified state; but the mere possession of it, and placing it in a store with other articles held for sale, was sufficient to warrant a jury in deciding that it was offered for sale." So where it appeared that the defendant was at the time in question doing business as a dealer in milk and cream, that the number on the milk wagon from which the sample was taken corresponded with the number on defendant's license, that the man driving the wagon was in defendant's employ, and that the samples were taken at 6:45 in the morning, while the wagon was being driven through the streets, it was held that the evidence was sufficient that the defendant was selling or offering the cream for sale. But where it appeared that adulterated milk was found in defendant's milk wagon, driven by defendant's employee; and it did not appear the driver was selling or delivering milk, or doing anything more than carrying it from Jersey City, where it was received from the shipper, to the defendant's place of business in New York City; and the evidence showed that the defendant returned all the milk to the shipper, it was held that, as it could not be presumed that defendant was engaged in an unlawful act, the evidence was not sufficient to warrant a recovery of the penalty inflicted by the statute.* 3 § 570. Manufacture or Possession with Intent to Sell. Where a statute makes it an offense to manufacture or have in possession oleomargarine or butterine with intent to sell it as pure butter, it is not violated by selling an oleaginous substance not the product of the dairy and not made from milk or cream, unless the sale was with the intent to sell such substance as genuine natural butter.1 A statute provided that "no person shall manufacture, mix or compound with or add to natural milk, cream or butter any 2 State v. Dunbar, 13 Or. 591, 11 Pac. 298, 57 Am. Rep. 33. 3 People v. Hills, 64 N. E. App. Div. 584, 72 N. Y. Supp. 340. 4 People v. Kellina, 23 N. Y. Misc. 134, 50 N. Y. Supp. 653. 1 People v. Laning, 40 N. Y. App. Div. 227, 57 N. Y. Supp. 1057. animal fats, or animal or vegetable oils; nor shall he make or manufacture any oleaginous substance not produced from milk or cream, with intent to sell the same for butter or cheese made from unadulterated milk or cream, or have the same in his possession, or offer the same for sale, with such intent; nor shall any article or substance or compound so made or produced be sold, intentionally or otherwise, as and for butter or cheese, the product of the dairy." It was held that, in order to prove a violation of such statute, it was not sufficient to show that defendant had manufactured oleomargarine by mixing animal fats with natural milk, etc., but the intent to sell the oleomargarine so manufactured as the product of unadulterated milk or cream must also appear.2 But where under a Pennsylvania statute it was made an offense to have in "possession with intent to sell" any oleag inous substance designed to take the place of butter or cheese, it was held to be immaterial that the defendant was ignorant that the substance he sold was of the prohibited composition. Upon a charge of a sale of milk below the standard prescribed by the statute, it is no defense that it was reduced below the standard by the removal of part of the cream, if the intent to sell was to sell the milk as pure milk, and not as skimmed milk.* Mere possession of adulterated milk is no offense under a statute making it an offense to have possession of such milk with intent to sell or exchange it.5 So under a statute making it an offense to adulterate milk with a view to offering it for sale or exchange, it is no offense to merely adulterate it. Where it 2 People v. Dold, 63 Hun 583, 18 N. Y. Supp. 643; People v. Simpson, Crawford Co., 62 N. Y. Misc. 240, 114 N. Y. Supp. 945; People v. Hale, 62 N. Y. Misc. Rep. 240, 114 N. Y. Supp. 945. 3 Commonwealth v. Weiss. 139 Pa. St. 247, 21 Atl. 10, 27 Wkly. N. C. 182, 23 Am. St. 182. 4 Commonwealth v. Bowers, 140 Mass. 483, 5 N. Y. 469. 5 State v. Smyth, 14 R. I. 100, 51 Am. Rep. 344. People v. Fauerback, 5 Parker Cr. Rep. 311. Where defendant was a jobber of candy, and admitted that he had purchased candies from which samples shown to be adulterated were taken, that he had such candies at his place of business, and did not contend that the candy was bought for any other was made an offense for every article of diseased meat had in possession for sale, it was held that accused was liable to a penalty for each piece of diseased meat from the same animal he had in his possession at the same time. Keeping rotten eggs to use in the manufacture of bread is forbidden by the New York statute. 8 § 571. Resale of Food Purchased under Written Warranty of its Purity. An English statute provides that a defendant charged with selling adulterated food must be discharged if he satisfactorily prove "that he had purchased the article in question as the same in nature, substance, and quality as that demanded of him by the prosecutor, and with a written warranty to that effect, that he had no reason to believe at the time when he sold it that the article was otherwise, and that he sold it in the same state as when he purchased it.' This section does not fit all instances of violations of the pure food law in which it belongs. In determining to what transactions it belongs the test is to see whether the wording of the section will fit the circumstances of the particular offense, or, in other words, whether there has been a sale to the prosecutor following upon a demand by him for an article of a particular nature, substance and quality. If these essentials be not present, the wording of this section does not apply to the case. Thus it is not applicable to an instance of "abstracting from the article of food any part of it," because that offense is not the sale, but the abstraction; although it would be applicable if the food from which the purpose than for re-sale in the course of his business, it sufficiently appeared that it was kept for sale, within New York City Sanitary Code, Section 68, providing that any person who shall "have for sale" adulterated food in the city of New York, etc. People v. Greenberg, 134 N. Y. App. 599, 119 7 Kenn V. (J.) 13. Bell [1910], S. C. 8 People v. Friedrich, 138 N. Y. App. Div. 29, 122 N. Y. Supp. 500; affirmed 200 N. Y. 591, 94 N. E. 1096. 1 38 and 39 Vict., ch. 63, § 25. |