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§ 587. Sale in Sealed Packages.

A statute required oleomargarine to be sold in sealed packages, the original seal of which should not be broken. A package was wrapped in parchment paper with a band around it attached to the seal; but the band was broken so that it was not difficult to open and change the contents of the package. It was held that there had been a violation of the statute.1

§ 588. Sign that Oleomargarine is Used in Restaurant.

Statutes occasionally require the keeper of a hotel or restaurant who serves his guests or patrons oleomargarine as a substitute for butter to exhibit signs in conspicuous places in the eating or dining room bearing the words "Oleomargarine Used Here" or similar words. Where such a statute is in force an indictment for not so posting up such signs must allege that the defendant furnished oleomargarine to his guests as a substitute for butter.1

milk-blended butter may be imported or dealt with."

By Section 1 of the same Act "Milk-blended" butter is defined as "any mixture produced by mixing or blending butter with milk or cream other than condensed milk or cream." By Section 4 milkblended butter is contraband if it "contains more than twenty-four percent of water." The names approved by the Board of Agriculture and Fisheries for this kind of butter are Alimo, Bradlac, Brenco, Camlaw, Casa, Casana, Casmon,

Casora,

Casova, Consumo, Dalphine, Debeco, Esselbee, Froco, Fromaid, Iveldale, Iveldene, Ivelette, Ivelmore, Jensa, Kingstyle, Maldar, Me-No, Nolax, Pearks' Breadmate, Pearks' Bredspred, Pearksown, Semaldine, Seeandwi, Ve-vo, anu Vivum. Bell's Sale of Food and Drugs Act (5th Ed.) 228.

1 People v. Fichten (N. Y.), 130 N. Y. Supp. 704.

1 People V. Redding (N. Y. Misc.), 126 N. Y. Supp. 977.

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A statute made it an offense to sell any compound made wholly or partly out of any fat, oil, oleaginous substance, or compound thereof, not produced directly and at the time of manufacture from unadulterated milk or cream from the same, which should be in imitation of yellow butter produced from pure unadulterated milk or cream from the same. a criminal prosecution under this statute it was held that the indictment was not open to the objections of insufficient description, or that it did not charge an offense, when it charged a sale of the "article, product or compound," and averred that it was "made wholly or partly out of fat, oil, or oleaginous substance, or compound thereof;" that it was not produced directly and at the time of manufacture from unadulterated milk or cream from the same, and that such article, product or compound was in imitation of yellow butter, produced from pure unadulterated milk or cream from

the same. An affidavit charging that the defendant sold to a certain person, on a day stated, in a certain county of the State, "a certain quantity of food, to wit, ground mustard," has a sufficient description of the article sold. So a charge that the defendant sold for blackberry wine "a certain compound and mixture consisting of wine, sugar, water, alcohol, salicylic acid and aniline red," is a sufficient description of the adulterated article sold.3 But an indictment charging one with unlawfully and fraudulently adulterating "a certain substance intended for food, to wit, one pound of confectionery," is fatally defective, for "confectionery" is a generic word, and includes a great variety of kinds of articles usually found in a confectioner's shop. Under a statute prohibiting the manufacture or sale of any food which has been adulterated by adding any substance so as to reduce or injuriously affect its quality or strength, or by substituting any cheaper or inferior substance, an indictment should state the particular substance with which, and the manner in which, the article of food alleged to have been manufactured or sold was adulterated.5

§ 590. Indictment Must Show What Was the Adulteration.

In charging that an adulterated article was sold by the defendant, it is necessary to set out what was the adulteration. It is not enough to allege that the accused sold a particular article of food that was adulterated. Thus, where

1 Cook v. State, 110 Ala. 40, 20 So. 360.

2 Haas v. State, 1 Ohio N. P. 248, 2 Ohio Dec. 177.

3 Meyer v. State, 1 Ohio N. P. 241, 2 Ohio Dec. 233.

4 Commonwealth Mass. 202.

V.

Chase, 125

In an instance where one indictment was in lieu of another, see R. M. Hughes & Co. v. Commonwealth (Ky.), 101 S. W. 1194, 31 Ky. L. Rep. 179.

Under a statute declaring that a sale of each of several packages shall each one constitute a separate violation of its provisions, one selling adulterated milk is liable in one action to cumulative penalties when he is guilty of a series of violations. People v. Koster, 212 N. Y. App. Div. 852, 106 N. Y. Supp. 793.

5 Dorsey v. State, 38 Tex. Cr. App. 527, 44 S. W. 514, 40 L. R. A. 201.

flour had been adulterated with corn-meal, and then sold, it was held necessary to aver that the adulteration consisted in the mixing of corn-meal with the flour; and it was not sufficient to aver that the accused did "knowingly and fraudulently manufacture, offer for sale, and sell a certain article of food, to wit, flour which was then and there known by him to be adulterated. "There are a number of articles or substances which might be intermingled with flour so as to reduce or lower or injuriously affect its quality or strength, or which are of an inferior or cheaper character; and by our system of pleading the appellant should have been charged with the particular substance with which the article in question was adulterated, so that he might be prepared to meet the State's case. 971

§ 591. Indictment for Sale of Unlabeled Package.

A statute provided that: "No manufacturer or other person or persons shall sell, deliver, prepare, put up, expose or offer for sale any lard, or any article intended for use as lard, which contains any ingredient but the pure fat of healthy swine, in any tierce, bucket, pail, package or other vessel or wrapper, or under any label bearing the words ‘pure,' ‘refined,' 'family' or other words, alone or in combination with other words of like import, unless every tierce, bucket, pail, package or other vessel, wrapper or label, in or under which said article is sold, delivered or prepared, put up, exposed or offered for sale, bears on the top or outer

1 Dorsey v. State, 38 Tex. Crim. App. 527, 44 S. W. 514, 40 L. R. A. 201.

A complaint in an action for a penalty for keeping and offering for sale adulterated vinegar, alleging that between certain dates defendant manufactured for sale, kept and offered for sale, adulterated vinegar which was made in imitation semblance of cider

or

vinegar, and that he manufactured,

kept, and offered for sale as and for cider vinegar a vinegar or product which was not cider vinegar as defined by statute, was sufficient under New York Agricultural Law, §§ 50-53 (Laws 1893, pp. 667, 668, ch. 338), defining adulterated vinegar, prohibiting the sale thereof, and imposing a penalty for its violation. People v. Windholz, 86 N. Y. S. 1015, 92 App. Div. 569.

side thereof, in letters not less than one-half inch in length, and plainly exposed to view, the words 'compound lard,' and the name and proportion, in pounds and fractional parts thereof, of each ingredient contained therein." An indictment averring a violation of this statute was in the language of such statute so far as it was necessary to constitute an offense, and this was held sufficient. In the construction of the statute, the court said: "If the bucket alleged to have been sold did not bear a statement of the ingredients, the offense was complete, no matter whether the package was stamped 'pure,' 'refined,' 'family' or 'compound lard.'""

§ 592. Negativing Provisos.

Provisos in statutes excepting certain persons or articles of food from the provisions of the statute need not be negatived in the indictment. If a defendant or the article of food falls within their scope, that is a matter of defense to be brought forward by the accused.1 Thus, one section of a statute made it an offense for any person to have in his possession for the purpose of sale adulterated milk, and another section defined "adulterated milk" as milk containing less than three percent of milk fat, also declaring that the Act. shall not prohibit the sale of skimmed milk, when sold as such. It was held that an indictment for having adulterated milk in possession, with intent to sell it, was not objectionable for failing to negative the exception contained in the latter section with reference to skimmed milk.2

§ 593. Duplicity.

An indictment charging that the defendant sold a certain

1 State v. Snow, 82 Iowa 642, 47 N. W. 777, 11 L. R. A. 355.

1 Commonwealth v. Mullen, 176 Mass. 132, 57 N. E. 331; Isenhour v. State, 157 Ind. 517, 62 N. E. 40, 87 Am. St. 228; State v. Bockstruck, 136 Mo. 335, 38 S. W. 317; People v. Briggs, 114 N. Y. 56,

20 N. E. 820; People v. Lewis, 131 N. Y. App. 336, 115 N. Y. Supp. 909; Commonwealth v. Kenneson, 143 Mass. 418, 9 N. E. 761; State v. Luther, 20 R. I. 472, 40 Atl. 9. 2 Splinter v. State, 140 Wis. 567, 123 N. W. 97.

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