.Yodr ‘&p&ion that the'.Artiol~e und.or oonsideration 1s "va$uo bna i.ndsfinito ana ,inoapable of cnforoementP may b3. corrsct. To our mind it is ,a question that is ,n?t Fntire- .

ly frsfi from doubt. iW;;'e\r~r, we thi.nk that the' req,ud?t m3y b0 praoticsl.Jy disposed of on oth3r grounds.

Khilo it is gonerally, true tl;ot intent or, wilful-. .::'_:, I noss is fin element of a crZains1 offense such is not neoes- '3arily the ca?o. l!sny statutory offenses noa punish for act8 regaraleso of Dho intent of the' defendant and this is usually the casd 4n the offenses pertaining to f00a and drug law en- foroezizent. .'12 Ter. Jur. 247; 26 C. 3. 765. Ho?z3ver, tho obsenoo of‘;&&y naocossitg on the part or the Stat0 to pleaa or p?gva jntent, knowlodge or v&lfulness, does not moan that the itafendant is preclpded from setting up a mistake :of ,faot as a dsfense in 'a'proi~r c3se. Article 41 of OUT Penal Codo ,, -1 .. : reads as PolJ.qws: : ?' '~ ..~ '~ . . ..~ . .' ,_ : ._ : . ." .r "If 8. person' lc.do&ng under a mistako 3s to

'a, porticulor fact shall a0 tip, act qhich vJ0uia -',.. ,. i- otherwise. bc OrimInal he is guilty df no offense, * .. .;;. .. '.:&tit -the mistake of fact ~hioh will excus3 must .-'.be such that the person so acf;inc under. B mln- -' take.would havs bsan excusable hsd hi3 oonjeotura as'to the fast been corroot, and.it must also be such mist&e es doe3 not arisa from a wdnt of pro- .I per.:o&re on the prt of the person so ooting.ll Nu&ous deoisions In ve &is&. under thio Artiola but of p&- titular gignnificatica to our inquiry are tl~oso dealing ivith In M.l.son v, Stato, 56 '( alleged violations of the food lass. s. w. 2a 463 ,... the .a efendsnt was oharged with ‘vioti tin%. the ~-. Pure Food L3vJ 3nd fined @O.OO. Ho was. the macager of a era- . cery' stbre and an ins.pcotor found puffed cans on hi& shelves .- which proved to be adult&rated 'Y.&en analyzed. Th3 Court sum- marized the defen43ntts teatiuony imp this lanGua&c,, "In short, he tostificd'.that ho did not kno*w that any edultoroted goods were on his shelves, sayin& that ,he ,;oould not knowingly have exposo~a such (gods for s31e, and, furth+:r, tPa t h3 viont over.

his sto&k and triad to piok out mercl1andi.W he thoucht ~33 adulternted." Althouch thi: statute so srovidod, the cour~t held th?t~ it NRS error for the court b&w to charge that, , *IIt oh33.1 not be cecessary. for the indiotzeat to allegc or for ~the state to prove that the act or ornisslon v~as knozingly done or onlitted." Th& court also quoted the Article3 sot out above ond stotcd,. l*If another trial ba had, c ohare uoder the ~proyisipno of Article 41, supca,~ should bo sutrmfttod to . VI TO the som3 effect Andy liko:;iao donlln,: .~ith pu.re the j wy fdod violations are Keaton v. State, 151. S. !;. 2d 019 and Vauf;hn v. State, 219 S. 1'!. 205. Ot.llur CBSOS booring on the :j' *3 j{onOrable i:!. IL EcClain, l?apeeo.3

potnt but concerned rvith violations of the liquor l.aus and the al.cGholic aontcnt of the beverages involved are i?ise v.

state, 70 S. Xi. 2d 424 and Patrick v. State, 78 S. 7;. 947.

'te cbncludc that kdo~ledse, ,intent or dllfulnoss m-o not elcn?ents.~~hich nust be charged and proved by tha state to z~ke out a case under Article I.493 beoausc they are not repUiTed th0 StatutGry definition Of th0 offense. U!ldW . ~~or;evor, the defendant io not deprived of his right to shoe

e mistake Of fact through no lack of diliCenoo on his port .

8s o.ooxple~s defense to tbw charge. fn ooch case his de- fcnsivo mtter .bill. raise 0 qucotion of fact for the jury under an appropriate char&e phraaod according to Article 41 sU;~a. Under .tha foota inquired about it would a5poar-that the rnillor.undor invos ti@tion.hos aub!n.Lttod the propcr sa:~1- pies of hio food for analysio under Article 1491, Pcnal'code, Obviously he paid~his tax em? the Daznples sub;;lIttoQ snot the - required standards--otherwise the Texas Qricultural Expcri-

nent Station vi0uld not have i~~od whir, the tap ata.tinS the protein analysin. Fllrther:noro, it ap&earD from yGUr state- ment that corn ordtiarily tssts ebout *OS protein when wound and that the sample co~plainod of tested .0793,,a variation of only .OOO7. You state that the aillor had no intent to defraud and had no Fntcnt to violate the. 13~ ani that the particular lot of corn fros which ths condcnmsd,sam~lc was taken ~8 out of the ordinary in that it had n~ore shuck and.

oob than Uaua'l: Y..

i:hiie it is purely a Latter of polloy foryour OS- ~. .. fioc as to whathor.this party should be prosouuted or not, It occurs to us that if you were Sittine 01~ his jury and found the facts to be as you hove given then to us that it viGuld probably be your duty under your oath to acqui.t him Undor a proper,charE;a Given uuder Article 4.1, Penal Code.

V:e hose our vi&s &IS be helpful ~.n'ti.i.a matter and ~'0 will be pleased if nuch is the case.

Very truly yours ATTCXWX GXXXRAL OP TSXAS : .~ Eu~cne Alv I3

Assia~tant _.

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