Commonwealth v. Tobias
| Decision Date | 24 February 1886 |
| Citation | 6 N.E. 217,141 Mass. 129 |
| Parties | COMMONWEALTH v. TOBIAS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Complaint to the municipal court of the Roxbury district of the city of Boston, charging the defendant, in one count, with the offense of selling adulterated milk, and, in the second count, with having such milk in his possession with intent to sell. The complaint, and the motion to quash, filed in the municipal court, overruled there, and also the motion to quash filed in the superior court, and overruled, were made a part of the case. At the trial in the superior court, before ALDRICH, J., the government introduced evidence tending to show the purchase of a quantity of milk from a woman in charge of a shop where pastry and milk were sold; that said milk, on analysis, was shown to contain 9.34 per cent. milk solids, and was a watered milk; and that defendant was the proprietor of the shop where said milk was purchased. Said woman was the servant and agent of the defendant in the sale of said milk. The defendant introduced evidence of the woman who was in charge of the shop, and of the proprietor tending to show that said milk was kept in a tank only marked "Skim-milk," and that they sold it as skim-milk and did not water it. The defendant then asked the court to rule:
(1) If the jury find on the evidence that there was a consummated sale, they cannot convict under the second count. (2) If the jury find and believe that defendant sold skim-milk out of a tank legally marked "Skim-milk" they cannot convict of this complaint. (3) Selling out of a tank so marked, with no representation save what is indicated by that marking would be in law a sale of skimmed milk. (4) If the jury find the reason why the milk contained less than 13 per cent. milk solids was that a portion of the cream was removed, they must find the defendant not guilty. (5) If they find that the milk contained less than 13 per cent. of milk solids solely in consequence of a removal of a portion of the cream, they cannot find defendant guilty under this charge. (6) All the evidence in this case proves no offense under the fifth section of the milk statute. (7) There is no standard for skim-milk. That kind of milk need not contain 13 per cent. of solids. (8) If the defendant's servant sold the milk out of a skim-milk tank, properly marked, and made no false representation as to its quality and character, the defendant cannot be convicted under either count.
The court declined to give the instructions in the language of these requests, and instructed the jury that, if they should find upon the evidence that water had been added to the milk described in the complaint, and that it was watered milk, and that the defendant sold the milk by his servant or agent, they would be authorized to return a verdict of guilty on the first count; and if they should further find that the defendant kept the same milk with intent to sell it, they would be authorized to return a verdict of guilty on the second count; and the court also instructed the jury that if the milk was skimmed milk, they would not be authorized to convict the defendant on either count, upon the evidence that the milk contained less than 13 per cent of milk solids, unless they should also find that water had been added to the milk, so that it was a watered milk at the time of the alleged keeping and sale. The jury returned a verdict of guilty, and the defendant alleged exceptions.
George W. Searle, for defendant.
E.J. Sherman, Atty. Gen., for the Commonwealth.
The complaint was sufficient, and the motion to quash rightly overruled. Com. v. Keenan, 139 Mass. 193; Same v. Taylor, 113 Mass. 4. It is not necessary to allege that an analysis had been made of the milk. Com. v. Bowers, 140 Mass. ----; S.C. 5 N.E. 469. Pub.St. c. 57, § 10, does not prohibit any person not an inspector from making a complaint. The construction we give to Pub.St. c. 57, §§ 5, 6, 7, and 9, is that these sections prohibit the sale, etc., of milk containing more than 87 per cent. of watery fluid, or less than 13 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 section 7, and when that is made a charge, it is immaterial what is the deficiency of the milk solids; that the sale, etc., 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 disordered cows, is prohibited, whether it is sold as skimmed milk, and whether it contains more or less than 13 per cent. of milk solids, and is prohibited in all cases unless it is sold as skimmed milk out of a vessel, can, or package marked as required by section 7.
One question, then, is whether, if the defendant sold the milk as skimmed, out of a tank marked as required by section 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 is a good answer to the charge, namely, that of selling "milk containing less than 13 per cent. of milk solids." The quantity of skimmed milk solids which skimmed milk must contain was not defined before the passage of Acts 1885, c. 362. We think that this specification cannot be rejected as surplusage. Com. v. Luscomb, 130 Mass....
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