manufacture and sale of oleomargarine, butterine and other similar products," is not bad because the disjunctive "or" is used between the words "oleomargarine" and "butterine.'" But an indictment in the disjunctive, charging that the defendant kept for sale an article made by "adding to milk, cream or butter, animal fats or animal or vegetable oils,' was held sufficient. Yet an indictment for having in possession, with intent to sell, oleomargarine made partly out of oleaginous substances not produced from unadulterated milk or cream, is not in the alternative, as alleging that the substance was made from adulterated milk or cream, since if all the substances of which it was composed were produced either from unadulterated milk, or cream therefrom, no offense could be charged."

§ 598. Mislabeling or Misbranding.

A statute provided that no person should sell lard, or any article intended for use as lard, which contained any ingredient except the pure fat of healthy swine, under any label bearing the words "refined," "pure," "family," unless every package in which the article was sold was marked "compound lard." It was held that an information charging a violation of such Act is sufficient if it alleges, in substance, that the defendant sold a package, or bucket, filled with an article intended for use as lard which contained other ingre dients than pure fat of healthy swine, and that such bucket or package did not bear on the top or outer side the name, and proportion in pounds and fractional parts thereof, of each ingredient contained therein, without alleging that it

7 Commonwealth V. McDermott, 37 Pa. St. Rep. 1.

8 Ryan v. State, 5 Ohio Cir. Ct. Rep. 486.

9 Commonwealth v. Mullen, 176 Mass. 132, 57 N. E. 331; People v. Lewis, 131 N. Y. App. 336, 115 N. Y. Supp. 909.

Under а statute requiring the keeper of a hotel or restaurant

serving his guests with oleomargarine "as a substitute for butter" to put up signs in the serving or din ing room bearing the words "oleomargarine Used Here," the indictment must allege that the defendant furnished the oleomargarine to his guests "as a substitute for butter." People v. Redding, 142 N. Y. App., 126 N. Y. Supp. 977.

was stamped "pure," "family" or "compound" lard.1 A statute prohibited the misbranding or adulteration of any article of food, defined "food" as an article used for food for man or domestic animals, and declaring that an article was misbranded where the label bears any false statement concerning the substances of which the article was made, and that an article was adulterated where any substances were mixed with the article so as to injuriously affect the article. Under this statute an indictment alleging that the defendant sold and delivered a product for food for domestic animals, that the product was branded as described, and was guaranteed to contain certain articles, that the label was untrue, and that the product was largely adulterated, it was held to be sufficient.2

§ 599. Sale of Adulterated Food Without Informing

Purchaser.

Where a statute makes it an offense to sell adulterated food without informing the purchaser of its adulteration, then it is not enough to charge a sale of such food without alleging a failure to inform the purchaser of its true condition.1

§ 600. Allegation that Sale was of Article for Food.

As a rule, it need not be averred that a sale of an adulterated article was a sale of the article to be used as human food.1 A charge of a sale of adulterated milk need not allege that the milk was an article of food, and if the statute

1 State v. Snow, 81 Iowa 642, 47 N. W. 777, 11 L. R. A. 355.

2 W. H. Small & Co. v. Commonwealth, 134 Ky. 272, 120 S. W. 361.

1 State v. Falk, 38 Mo. App. 554; Commonwealth V. Boynton, 12 Cush. 499.

1 State v. Kelly, 53 Ohio St. 667, 43 N. E. 163, reversing 1 Ohio N. P. 238, 2 Ohio Dec. 239; Common

wealth v. Kolb, 13 Pa. Super. Ct. Rep. 347 (sufficient after verdict). A charge of a sale of milk "as and for pure milk, an article of food," is a sufficient allegation that it was sold as an article of food. Lansing v. State, 73 Neb. 124, 102 N. W. 254.

2 State v. Smith, 69 Ohio St. 196, 68 N. E. 1044.

prohibits a sale of adulterated milk it need not be alleged that the milk sold was cow's milk. If the statute makes it an offense to sell adulterated wine as a beverage, then the statute must charge a sale of wine as a beverage or it will be bad. A charge of a sale of cream of tartar for a drug is not supported by evidence showing a sale of the article as a food, even though the statute make a sale of such an article as a food an offense.5

§ 601. Sale by Agent.

Where a sale is made by an authorized agent the charge may be that the principal made the sale, and proof that the principal's authorized agent sold it will support the indictment. Thus, a statute required that, in a sale at retail of any compound in imitation of butter, "the seller or his agents" should attach to each package a label of a specified character describing the article; it was held that the indictment need not allege that the sale with which the defendant was charged was actually made by an agent, in order to let in proof of that fact. Yet, where a statute made it an offense for any one, by himself or agent, or as servant or agent of another person, to sell milk from which the cream had been removed, an indictment charging a principal with an improper sale was held insufficient where the sale was made by an agent. When the person to be prosecuted is the seller or consignor himself, and the indictment alleges a sale by the consignor "by the hands of A. B., his servant or agent," and it turns out that A. B. was not his servant or agent for sale, but merely a carrier, there is a fatal variance.3 Where a statute provided that "No person, either by his servant or agent, or as servant or agent of another person," should sell

3 Commonwealth V. Farren, 9 Allen 489.

4 Vester v. State, 1 Ohio N. P. 240, 2 Ohio Dec. 170.

5 People v. Fuller, 12 Abb. N. C. 196.

1 Commonwealth V. Gray, 150

Mass. 327, 23 N. E. 47; Williams v. State, 25 Ohio Cir. Ct. Rep. 673. 2 Heider v. State, 4 Ohio S. & C. P. Dec. 227.

3 Hiett v. Ward, 58 J. P. 461, 70 L. T. 374, 10 T. L. R. 284.

impure food, it was held that an indictment charging that the accused sold such food was insufficient, for it should have alleged that the defendant made the sale "by his servant" or "by his agent," or "by his servant and agent."

§ 602. Milk.

A charge in an indictment that the defendant sold to one T. a quantity of milk as pure milk, to which a quantity of a substance had been added which was poisonous, was held sufficient. When a statute defines adulterated milk to be milk containing more than 87 percent of watery fluid, or less than 13 percent of milk solids, it is sufficient to allege, on a charge of having adulterated milk in possession with intent to sell it, that defendant had in his possession, with intent to sell, a certain quantity of adulterated, "to wit, milk containing less than 13 percent of milk solids," and it need not be alleged what reduced the milk below the legal standard." Nor need it be alleged that there had been an analysis which showed that the milk had been adulterated, even where the statute provides for an official analysis. Where a statute provided that "whoever fraudulently adulterates, for the purpose of sale, bread or any other substance intended for food, with any substance injurious to health, or knowingly barters, gives away, sells, or has in his possession with intent to sell, any substance injurious to health," should be fined, an indictment charging one with having for sale adulterated milk need not disclose where or how the evidence against him was procured; and if it be charged that the milk was "adulterated with a certain substance injurious to health, to wit, formaldehyde," it need not be alleged that formaldehyde is

4 State v. Squibb, 170 Ind. 488, 84 N. E. 969.

1 Lansing v. State, 73 Neb. 124, 102 N. W. 254.

? Commonwealth v. Keenan, 139 Mass. 193, 29 N. E. 477.

3 Commonwealth v. Bowers, 140 Mass. 483, 5 N. E. 469; Common

PURE FOOD-49.

wealth v. Tobias, 141 Mass. 129, 6 N. E. 217; St. Louis v. Bippen, 201 Mo. 528, 100 S. W. 1048; St. Louis V. Schottell (Mo.), 100 S. W. 1049; Vandergrift v. Miehla, 66 N. J. L. 92, 49 Atl. 16; State v. Luther, 20 R. I. 472, 40 Atl. 9.

either poisonous or injurious to health. Nor need it be alleged, where possession of adulterated food is charged, that the defendant adulterated it, and it need not be alleged the milk violated a certain standard fixed by the State Board of Health. "Appellant is not charged with violating a standard," said the court, "and the character of the act for which he is prosecuted is not determined by a standard. He is called upon to answer for having in his possession with intent to sell milk adulterated with a substance injurious to health. The having in possession with intent to sell adulterated food that may in any material degree injuriously affect the health of the consumer is positively forbidden by that provision of the law under which appellant is prosecuted. Whether or not the Board of Health had fixed standards of purity in the matters required of them can not avail one as a defense to a charge in which no standard is required. It is not necessary for the indictment to show that the State Board of Health had prepared rules and ordinances, and defined adulterations, and that the milk in possession of appellant violated some rule, ordinance or standard. The offense with which appellant is charged is independent of all action. of the board, and is not affected by anything they may do or leave undone."' The quantity of the foreign substance. added to milk need not be alleged where the charge is having in possession adulterated milk with intent to sell it. Such was held to be the case where the foreign substance added was putting annatto into it to color it. The indictment need not separately state and number the causes of action when they are based on the sale of several cans of milk at one sale, and to so state and number them would make it of ridiculous length and defeat the object of reducing pleadings to the simplest form. But there can be separate infor