can. mations laid in respect of samples taken from more than one Thus where an inspector procured a sample from each of five cans in the course of delivery, and, upon its being found that there was a deficiency of cream in two of the samples submitted for analysis, laid two separate informa tions in respect of them, it was held that the procuring of each sample was a separate transaction, and that the milkseller had committed a separate offense in respect of each one which was deficient, and that, therefore, the two informations were properly laid, and that there could be two convictions." § 603. Selling Adulterated Milk at Cheese Factory. Where a statute punished any person selling, supplying or bringing to be manufactured into cheese or butter to any butter or cheese factory, any milk diluted with water, an indictment alleging that the defendant brought to a certain named cheese factory, for the purpose of being manufactured into cheese and butter, a large quantity of milk diluted with water, and that such milk was delivered to a person named, for the purpose of cheating and defrauding him, contains a sufficient charge of the crime thereunder.1 Charging that he brought the milk on the 3d and 4th day of a particular month describes only a single transaction. A charge that the defendant did wrongfully, unlawfully and knowingly supply and bring to be manufactured into cheese, to a cheese factory, then and there situate, a certain quantity of milk, which milk was then and there diluted with water, for the purpose of having it manufactured into cheese, is likewise sufficient. 7 Feat 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. The Scottish court, however, dissented from this case. Telford v. Fyfe [1908], Sess. Cas. (J.) 83. Under Laws of N. J. 1882, p. 97, 84, the complaint for selling adulterated milk must be special. State v. Newton, 45 N. J. L. 469. The offense of selling adulterated milk may be charged in the language of the ordinance making it an offense. St. Louis v. Ameln (Mo.), 139 S. W. 429. 1 People v. Harris, 54 Hun 638, 7 N. Y. Supp. 773. 2 People v. Harris, supra. 3 People v. West, 106 N. Y. 293, 12 N. E. 610, 60 Am. Rep. 452; People v. West, 44 Hun 162. If the particular offense intended to be proved is the bringing of skim milk to a full cream cheese factory, it should be alleged that the milk in question was milk from which the cream had been taken, and that the factory to which it was brought was a full cream cheese factory, or was not a skim cheese factory. One of the general character above stated is not insufficient in such an instance.* A statute of Vermont made it an offense to sell or keep with intent to sell the flesh of calves which were less than four weeks old when killed, and it was held that an allegation that the defendant "in the said county," naming the county of the prosecution, on a certain date "did then and there keep with intent to sell" such flesh, sufficiently laid the place of the intended sale within the State, since, when the offense charged was a misdemeanor, if time and place be added to the first act alleged, it is deemed to be connected with all the facts subsequently added.1 § 605. Uninspected Liquors. Where a statute made it an offense to sell uninspected food and liquors, it was held not sufficient to merely allege that the liquor had not been inspected in the county where sold, and that the cask from which it was taken did not have the inspector's brand of any county.1 § 606. Refusing to Furnish Samples. In a prosecution of a person for refusing to furnish a sample of an article of food offered for sale, for analysis, it was held that it must be distinctly stated what statute had been violated, and that it was not enough to say the defendant refused to furnish for analysis a sample, contrary to an Act 4 People v. Spees, 18 N. Y. App. Div. 617, 46 N. Y. Supp. 995. 1 State v. Peet, 80 Vt. 449, 68 Atl. 661, 130 Am. St. 998, 14 L. 1 Woodworth v. State, 4 Ohio St. passed on a certain day. In such an instance the names of the persons refused must be given,2 and it must also be alleged that the article of food was "demanded.' § 607. Failure to Label Articles of Food. One section of a statute provided that every person who should manufacture for sale, or offer for sale, oleomargarine, should cause every parcel to be stamped, and every retailer should cause every package sold by him to be stamped. Another section provided that every person who should sell or offer to sell, or have in his possession with intent to sell, oleomargarine without being stamped, and that every retailer who sold a package without delivering it labeled, as required by the first section, should pay a fine. A third section provided that every person who should sell, or offer or expose for sale, oleomargarine, without having it stamped or labeled, should be guilty of a misdemeanor. An indictment charged that the defendant had in his possession oleomargarine, with intent to sell the same, without delivering to the purchaser a printed label bearing the word "oleomargarine," and it was held to charge no crime.1 § 608. The Prosecutor. The general rule is that the action to recover a penalty for a violation of a statute is brought in the name of the State by the ordinary prosecuting officer, by indictment or affidavit, and the fact that an inspector or Board of Health is charged with the duty of enforcing the food adulteration law does not necessarily mean that the action must be brought in his name or that he must be instrumental in bringing it. Thus, where a statute declared that "it shall be the duty of the State Board of Health to enforce the laws of this State governing food and drug adulterations," it was held 1 Margolius v. State, 1 Ohio N. P. 264. 2 Margolius v. State, 1 Ohio N. P. 264. 3 Margolius v. State, 1 Ohio N. P. 264. 1 Pierce v. State, 63 Md. 592. not necessary for the State board to institute or cause to be instituted proceedings to have a fine assessed for having in possession milk into which formaldehyde had been put. "We can not believe," said the court, "that the General Assembly, by imposing a special duty upon specified officers to enforce the statute, meant that individuals should be excluded from making complaint. The law is general and has a general application. The interdictions prescribed by the Act are for the public welfare, as much for one as for another, and it can not be assumed that the Legislature, by conferring a duty upon certain officers to enforce the law, intended that its enforcement should depend wholly upon the pleasure or discretion of such officers. We see no reason for distinguishing this from other public offenses in its general object and purpose, or why any one entitled to the law's protection may not institute its enforcement, as he may, ordinarily, do in other cases. The evident intent was to confer upon the State Board of Health official duty, in addition to common individual right, to put the law in motion in proper cases. Ꭺ statute requiring the Commisioner of Agriculture to cause an action or proceeding "to be brought in the name of the people," to recover a penalty, does not require an allegation that the action was brought by him.2 1 Isenhour v. State, 157 Ind. 517, 62 N. E. 40, 87 Am. St. 228; Commonwealth v. Gay, 153 Mass. 211, 26 N. E. 852; Commonwealth v. McDonnell, 157 Mass. 407, 32 N. E. 361; Commonwealth v. Davison, 11 Pa. Super. Ct. Rep. 130; Com monwealth v. Mullen, 176 Mass. 132, 57 N. E. 331; Commonwealth v. Spencer, 28 Pa. Super. Ct. 301. 2 People v. Lamb, 85 Hun 171, 32 N. Y. Supp. 584; People v. Braested, 30 N. Y. App. Div. 401, 51 N. Y. Supp. 824. Where a statute prohibited a sale of imitation butter, but declared that the "sale of oleomargarine in such manner as will advise the consumer of its real character, free from coloration or ingredient that causes it to look like butter, by having it stamped with its true name," it was held, in a prosecution for the sale of oleomargarine in violation of its provisions, that evidence was admissible to show that the oleomargarine sold was of the color of yellow butter. So a witness may testify that the article sold had the appearance of butter. If it be shown that the substance sold had coloring in it, it will be presumed that the oleomargarine sold for butter was actually colored to imitate butter. Under an indictment charging a sale of oleomargarine colored yellow to resemble butter, if it is competent for the defendant to prove that cotton-seed oil is, in a commercial sense, a necessary constituent of oleomargarine, it is equally competent for the prosecution to introduce explanatory evidence in rebuttal that the necessary result of the use of cotton seed is not to 1 Cook v. State, 110 Ala. 40, 20 So. 360. 2 People v. Berwind, 38 N. Y. Misc. Rep. 315, 77 N. Y. Supp. 859. 3 People v. Teele, 131 N. Y. App. 87, 115 N. Y. Supp. 212. |