134 Ky. 272 | Ky. Ct. App. | 1909
Opinion op the court by
— Affirming.
This criminal proceeding in the form of a penal action was instituted by the Commonwealth of Kentucky against the appellant, a foreign corporation, to recover a fine for an alleged violation of the pure food law of the state. The substantial averments of the petition are: That ‘ on the-day of-, 1907, the defendant sold and delivered to F. M. Allen, in Ohio county, Ky., 100 pounds of food product marked ‘XXX Mixed Feed,’ and guaranteed its analysis to be as follows, viz: ‘Protein 13.81 per cent.; fat 3.15 per cent.; made from wheat middlings, corn.’ The said article was sold and used for food
The errors relied upon for a reversal are: (1) The admission of incompetent evidence; (2) failing to instruct the jury to find a verdict of not guilty; (3) error in the instructions given.
The prosecution was under an act of March' 13, 1908, now section 1905a of the Kentucky Statutes of 1909. The sections of the act necessary to note are:
“Section 1. That it shall be unlawful for any person, persons, firm or corporation within this state to manufacture for sale, produce for sale, expose for sale, have in his or their possession for sale or to sell any article of food, or drug which is adulterated or misbranded within the meaning of this act; and any
' “Section 2. That the term ‘food,’ as used in this act, shall include every article used for or entering into the composition of food or drink for man or domestic animals, including all liquors.”
‘ ‘ Section 3. For the purpose of this act, an article of food shall be deemed misbranded: (1) If the package or label shall bear any statement purporting to name any ingredient or substance as not being-contained in such article, which statement shall not be true in any part; or any statement purporting to name the substances of which such article is made, which statement shall not give fully the name or names of all substances, contained in any measurable quantity. * * *”
“Section 4. For the purpose of this act, an article of food shall be deemed to be adulterated: (1) If any substance or substances be mixed or packed with it
“Section 8. It shall be the duty of the director of the Kentucky Agricultural Experiment Station, or under his direction, the head of the division of food, inspection of the said station, to make, or cause to be made, examinations of samples of food and drugs manufactured or on sale in Kentucky at such time and place and to such extent as he may determine.* * * The director of said experiment station is hereby empowered to adopt and fix the methods by which the samples taken under the provisions of this act shall be analyzed or examined, and to adopt and fix standards of purity, quality or strength, when such standards are necessary or are not specified or fixed herein or by statute. * * * ”
“Section 12. When any manufacturer shall offer any article of food or drug for sale in the state he shall file with the director of the said station, when requested by him, the name of the brand, the name of the product, the place of its manufacture or preparation, and a true copy of all labeling used thereupon. Failure to so file within thirty days shall be punished as provided in section one of this act.”
“Section 13. In all prosecutions under this act, the courts shall admit as evidence a guaranty which has been made to the holder of the guaranty by any manufacturer or wholesaler residing in this state, to the
It will be observed that this statute prohibits the misbranding or adulteration of “any article of food or drug,” and defines the meaning of the words “food,” “misbranding,” and “adulteration.” The petition stated that the food was both misbranded and adulterated. Whether or not two offenses — so intimately connected as are the adulteration and misbranding of the same article as in this case, may be joined in an indictment or penal action, we do not deem it necessary to decide, as no motion to require the Commonwealth to elect was made; but, passing this, there can be no question that the petition furnished the defendant in ordinary- and concise language, and in such a manner as to enable a person of common understanding to know what was intended, information of the charge preferred against it. It could not, after reading the petition, be mistaken as to the offense or offenses the Commonwealth accused it of having committed. The penal action was brought under section 11, Cr. Code Prac., which provides that: “A public offense, of which the only punishment is a fine, may be prosecuted by a penal action in the name of the Commonwealth or in the name of an individual or corporation, if the whole fine be given to such individual or corporation. The proceedings in penal actions are regulated by the Code of Practice in civil actions. ” And as the statute punishing the offense charged declares that any person found guilty “shall be fined not less than ten dollars nor more than one hundred dollars or be imprisoned not to exceed fifty days or both such fine and impris
On each sack of the food that W. IT. Small & Go. sold was a paper label or tag, with the following-printed matter on it:
$100 penalty for using this tag /second time.
100 pounds
XXX MIXED DEED
Made by
W. H. Small & Co.,
Evansville, Ind.
Guaranteed Analysis.
Per cent.
Protein ................'.................................. 13.81
Fat ..........................................'............ 3.15
Made from:
Wheat Middling-s.
Corn.
The above is the mian-ufactureir’s or dealer’s guarantee and the sale of this package is authorized subject ¡tic» the feed stuffs law.
M. A. Scovell, Director,
Kentucky Agricultural Experiment Station,
Lexington, Kentucky.
The evidence established that a merchant, named Allen, in Ohio county, bought several sacks of this feed stuff, and that he sold a sack of it with the tag-attached to a farmer named Dr. W. M. Warden, who wanted the food for a hog. Finding that his hog would not eat the food, Dr. Warden wrote to M. A. Scovell, the director of the experiment station, for information looking to an analysis of the food. In response to this letter, the director sent J. W. McFarland, state inspector of mill feeds, fertilizer and field seed, to Dr. Warden, and McFarland obtained from Dr. Warden a sample of the feed stuff he had purchased from Allen; the sample being taken from the' sack in which it was when purchased by Warden, and that had on it at the time the tag or label before mentioned. This sample McFarland sealed and sent
Application for License to Sell Concentrate’ll Commercial Feeding Stuffs in Kentucky.
M. A. S covell, Director, Lexington, Ky.:
Application is hereby mad¡e bo sell concentrated commercial feeding stuffs in Kentucky 'during the year ending December 31, 190 — , with names of brands, name and address of the manufacturer, net weight of package, guanantejsd ¡analysis, and names of ingredients from which it is made.
Name of Brand Name of Manufacturer Net Weight of Package, lybs. Guaranteed Analysis Protein. Fat Name of Ingredients from which It is Made
XXX Mixed Feed W. H. Small & Co. J3.81 3.15 Wheat Middlings and Corn
[Signature] W. H. Small & Co., Bvansville, Ind.
June 19, 1907.
H. D. Spears, state feed inspector, testified: That he was a graduate in chemistry and had been connected with the experiment station of Kentucky for more than a year; that he made an analysis of the sample sent to the station by McFarland, and the analysis showed 12 per cent, protein, 3.56 per cent, fat, and 30 per cent, corncob. He further testified that the food stuff, if made according to the application and in conformity to the label, should only have contained corn and wheat product and no cob; that the cob had no food value whatever. In , short, the evidence in behalf of the Commonwealth— and no testimony was introduced for the defendant — proved
The only instructions given were these: “No. 1. If the jury believe from the evidence, to the exclusion of a reasonable doubt, that the defendant sold to one F. M. Allen, in Ohio county, in the year 1907, and before the 19th of October, 1907, 100 pounds, or any less number of pounds, of food product marked ‘XXX Mixed Feed/ sold for and to be used for food for domestic animals, and branded and labeled as above set out, and represented it as made from wheat middlings and corn, and that said brand and representations were false and untrue, and did not truly and fully give the name of the substances contained in said feed, and said feed was adulterated with corncob meal, then the jury should find for the plaintiff in a sum not less than $10 nor more than $100. No. 2. If the jury entertained a reasonable doubt from the evidence as to whether the defendant has been proven guilty, they should acquit it. ’ ’ These instruc
Wherefore the judgment is affirmed.