Splinter v. State
140 Wis. 567
Wis.
1909
Check Treatment
Bakn-es, J.

Sec. 4607, Stats. (Supp. 1906; Laws of 1905, ch. 138), makes it a misdemeanor for any person to sell, offer to sell, or Rave in his possession for the purpose of sale, any adulterated milk. Sec. 4607a provides that in all prosecutions under the preceding section the term “adulterated milk” shall mean milk containing less than three per centum of milk fat. TRe section further provides that nothing in the act shall be construed as prohibiting the sale of milk commonly known as “skimmed milk,” when the same is sold as and for “skimmed milk.”

TRe defendant contends that the complaint is faulty because it does not allege that the milk in question was not kept and offered for sale as skimmed milk, and that the proof submitted by the state was insufficient to sustain a conviction because it failed to establish the same fact. The sufficiency *569of the complaint is not raised by any exception. The sufficiency of the evidence is raised by an exception to the refusal of the court to discharge the defendant after the state had rested its case. The proviso in regard to the sale of skimmed milk is not found in sec. 4607, ivhich makes it an offense to sell adulterated milk, but is found in the following section. The rule is quite general that where an exception is in a separate section of the statute, or in a proviso which is distinct from the enacting clause, it is a matter of defense which the prosecution need not anticipate or notice. Metzker v. People, 14 Ill. 101; Sokel v. People, 212 Ill. 238, 72 N. E. 382; Alexander v. State, 48 Ind. 394; Russell v. State, 50 Ind. 174; State v. Williams, 20 Iowa, 98; State v. Van Vliet, 92 Iowa, 476, 61 N. W. 241; State v. Gurney, 37 Me. 149; State v. Boyington, 56 Me. 512; Comm. v. Hart, 11 Cush. 130; People v. Phippin, 70 Mich. 6, 37 N. W. 888; Kline v. State, 44 Miss. 317; State v. McGlynn, 34 N. H. 422; State v. Cassady, 52 N. H. 500; Mayer v. State, 63 N. J. Law, 35, 42 Atl. 772; State v. Price, 71 K. J. Law, 249, 58 Atl. 1015; Comm. v. Shelly, 2 Kulp (Pa.) 300; Villines v. State, 96 Tenn. 141, 33 S. W. 922; Bell v. State, 104 Ala. 79, 15 South. 557; State v. Railroad Co. 54 Ark. 546, 16 S. W. 567; State v. Thompson, 2 Kan. 432; Comm. v. Benge, 13 Ky. Law Rep. 591; Barber v. State, 50 Md. 161; State v. Cox, 32 Mo. 566; State v. Harris, 119 N. C. 811, 26 S. E. 148.

Such rule was adopted in this state in Byrne v. State, 12 Wis. 519. The modification of this rule adopted by some courts is that it is necessary to negative an exception or proviso not contained in the enacting clause of a státute where it constitutes an element of the description of the offense. U. S. v. Cook, 17 Wall. 168, 173, and cases cited in 22 Cyc. 346. There is no difficulty about stating an offense under sec. 4607, Stats. (Supp. 1906; Laws of 1905, ch. 138), without negativing the proviso contained in sec. 4607®. Under a statute prohibiting the sale of liquors to Alaska Indians except *570“for medicinal, mechanical, or scientific purposes,” it was held not necessary to negative the exceptions, because they constituted no essential part of the definition of the offense. Shelp v. U. S. 81 Fed. 694, 26 C. C. A. 570. The following cases also hold that it is unnecessary to negative such a. proviso as the one under consideration: State v. Kendig, 133 Iowa, 164, 110 N. W. 463; State v. Weller, 171 Ind. 53, 85 N. E. 761; Hale v. State, 58 Ohio St. 676, 51 N. E. 154; State v. Hefferrum, 28 R. I. 477, 68 Atl. 364; Mayer v. State, 64 N. J. Law, 323, 45 Atl. 624.

Otherwise we deem the proof sufficient to sustain a conviction. Six of the seventeen cans examined were below the-legal standard. Taking the average test of the entire lot it was a trifle above such standard. But the statute makes it an offense for any person to have in his possession with' intent to sell or offer for sale “any adulterated milk.” Manifestly, six separate cans containing forty-eight gallons of' milt fell within the condemnation of the statute, unless they contained skimmed milk which was kept for sale and sold as such. Instead of showing that the milk in question was kept for sale and sold as skimmed milk, the evidence of the defendant showed quite conclusively that it was not.

By the Court. — Judgment affirmed.