141 Mass. 129 | Mass. | 1886
The complaint was sufficient, and the motion to quash rightly overruled. Commonwealth v. Keenan, 139 Mass. 193. It is not necessary to allege that an analysis had been made of the milk. Commonwealth v. Bowers, 140 Mass. 483.
Section 10 of the Pub. Sts. c. 57, does not prohibit any person not an inspector from making a complaint.
The construction we give to the Pub. Sts. c. 57, §§ 5, 6, 7, and 9, is that these sections prohibit the sale, &c. of milk containing “ more than eighty-seven per cent of watery fluid,” or “ less than thirteen per cent of milk solids,” unless it is sold, not as pure milk, but as skimmed milk, and out of a vessel, can, or package marked as required by § 7; that, on such a charge, it is immaterial what is the cause of the excess of watery fluid, or of the deficiency of milk solids; that the sale, &c. of milk “ to which water or any foreign substance has been added, or milk produced from cows fed on the refuse of distilleries or from sick or diseased cows,” is prohibited, whether it is sold as skimmed milk or pure milk, and whether it contains more or less than thirteen per cent of milk solids; and that the sale of skimmed milk as pure milk is prohibited, even if it contains more than thirteen per cent of milk solids, and is prohibited in all cases, unless it is sold as skimmed milk, and out of a vessel, can, or package marked as required by § 7.
One question then is, whether, if the defendant sold the milk as skimmed milk out of a tank marked as required by § 7, he can be convicted on this complaint by proof that the milk was watered. We think he cannot.
The difficulty is in the form of the complaint. Proof that the milk was sold as skimmed milk, out of a tank duly marked,
If the offence of selling adulterated milk can be committed in several different ways, namely, by selling milk which contains less than thirteen per cent of milk solids, from whatever cause the deficiency arises, or by selling milk to which water or any foreign substance has been added, or milk from cows fed on the refuse of distilleries, or from sick or diseased cows, whether the milk contains more or less than thirteen per cent of milk solids, as this complaint has set out the method by which the offence was committed, it must be proved as charged.
If, then, the defendant’s proof that he sold the milk as skimmed milk, out of a tank duly marked, was a sufficient answer to the offence as charged, it was not competent for the government to rely upon evidence that the milk had been watered, because it had not charged him with selling watered milk,
If the effect of the removal of a part of the cream was to reduce the milk solids below thirteen per cent, the defendant could be convicted upon a complaint charging him with selling adulterated milk, to wit, milk containing less than thirteen peícent of milk solids, unless he sold it, not as pure milk, but as skimmed milk, and out of a vessel, can, or package marked as required by § 7; and it was not necessary that a complaint charging such an offence should be drawn under § 6.
There remain to be considered the first request for instructions, and the instructions given instead of it. Under statutes containing provisions similar to those in § 5, prohibiting the sale, &c., or having in possession with intent to sell, &c., it has been held that there is but one offence; and that the acts prohibited may all be alleged conjunctively in one count of a complaint or indictment. Commonwealth v. Nichols, 10 Allen, 199. Commonwealth v. Curtis, 9 Allen, 266.
In Commonwealth v. Eaton, 15 Pick. 273, the indictment, which contained but one count, charged that the defendant “ did unlawfully offer for sale and did unlawfully sell ” one half of a lottery ticket. The statute provided that, “ if any person shall sell, or offer for sale, or,” &c. any lottery ticket or part of a lottery ticket, he shall “ forfeit,” &c. The defendant demurred on the ground of duplicity. The court say, “ It is true that an offer to sell, without selling, a ticket is an offence by the statute; but an offer to sell and actually selling is but one offence.” In the present case, there is clearly no misjoinder of counts, because, if the same milk and the same time are intended in both counts, the counts are for the same offence described as committed in different ways ; if the milk was not the same, the counts describe different offences of the same kind. If- the same milk was intended in both counts, and the having it in possession was on the same day as the’ sale, and preliminary and incident to it, it is
Exceptions sustained.