Allen v. State

• Decision Date: 11 March 1947
• Docket Number: 7 Div. 887.
• Citation: 33 Ala.App. 70,30 So.2d 479
• Parties: ALLEN v. STATE.
• Court: Alabama Court of Appeals

30 So.2d 479

33 Ala.App. 70

ALLEN v. STATE.

7 Div. 887.

Alabama Court of Appeals

March 11, 1947

Rehearing Denied April 8, 1947.

Rains & Rains, of Gadsden, for appellant.

A A. Carmichael, Atty. Gen., and Jas. T. Hardin, Asst. Atty Gen., for the State.

HARWOOD Judge.

This appellant was by a jury found guilty on three counts of a solicitor's complaint charging him with selling, offering for sale, or possessing with intent to sell, adulterated milk. A fine of $500 was assessed against appellant by the jury, to which the court added the costs of this proceeding.

The evidence introduced by the state tended to show that the appellant operated a dairy farm in Etowah County. The milk produced on appellant's dairy farm was sold by him to the Tro-Fe Dairy Company in Gadsden, which company was engaged in the business of pasteurizing milk for sale to the public. Employees of the company collected the milk from appellant's farm every other day. On November 16, 1945 five or six cans of milk, bearing appellant's mark, were picked up at appellant's barn by W. T. Phillips, a company employee, and by him delivered to the plant of the company. There it was delivered to another employee of the company, J. M. Bragg, and by him poured into an empty weighing tank. After all of the milk from appellant's cans had been poured into the tank a sample of the milk was taken therefrom by W. A. Corley, an agent of the Pure Foods Division of the Alabama State Department of Agriculture and Industries. Mr. Corley testified that the sample taken was by him, sealed, labeled, and carried to Birmingham where he expressed it to the laboratory of the Alabama State Department of Agriculture and Industries, located in Montgomery. E. K. Tucker, Principal Agricultural Chemist for said department received said sample, broke the seal on the container, and analyzed same. His analysis showed said sample of milk contained 12% added water. All of the witnesses for the state testified that no water was added to the milk at any time it was in their respective custodies.

For the appellant two employees testified that they milked the herd and placed the milk in the cans on November 15, 1945, which were picked up by the Tro-Fe Dairy Company the following day, and that they did not add any water to the milk. They further testified that appellant was not present during the time they handled the milk.

The appellant himself testified that he was away from his farm on November 15, 1945, and did not return until late that night. He denied that he added any water to the milk or had any knowledge of water being added to the milk.

As originally filed the solicitor's complaint contained two counts, which were as follows: 'Count 1. The State of Alabama, by its Deputy Solicitor, complains of Luther Allen, whose name to the Deputy Solicitor is otherwise unknown, that within twelve months before the commencement of this prosecution, he did manufacture for sale therein, had in possession with intent to sell, offered or exposed for sale, sold or delivered an article of food which was adulterated within the meaning of Article 18, Title 2, Code of Alabama 1940, said food, purported to be milk, being adulterated in that a substance, namely, water, had been substituted wholly or in part for said food, contrary to law.

'Count 2. The State of Alabama, by its Deputy Solicitor, further complains of Luther Allen, whose name to the Deputy Solicitor is otherwise unknown, that within twelve months before the commencement of this prosecution, he did sell an article of food, namely, milk, which was adulterated in that it contained added water, contrary to Title 2, Section 306 of the Code of Alabama 1940.'

After the jury was struck the solicitor amended the complaint by adding Count 3, which was as follows:

'Count 3. The State of Alabama, by its Deputy Solicitor, further complains that the defendant did sell adulterated milk or cream contrary to law and in violation of Section 188, Title 2, of the 1940 Code of Alabama, contrary to law and against the peace and dignity of the State of Alabama.'

The appellant objected to the addition of the amendment to the complaint on the grounds that it was made after the jury was struck, and that it showed on its face that the statute of limitations had run against the misdemeanor charged in said count.

The court overruled said objection. Count 3 amending the complaint apparently was added because of a misrecital or erroneous recital of the code sections mentioned in Counts 1 and 2 of the complaint. Omitting such code references, Counts 1 and 2 of the complaint substantially set forth that the appellant did, within 12 months before the beginning of this prosecution, sell milk which had been adulterated by added water. The misrecital of the code sections did not render the complaint void, if the facts set forth constituted an offense under any statute.

See 42 C.J.S. Indictments and Informations, § 139, and cases there cited. Section 347 of Title 13, Code of Alabama 1940, sets forth that a solicitor's complaint in county court may be substantially in the following form: 'The State of Alabama, by its solicitor complains of C. D. (the defendant), that within twelve months before the commencement of the prosecution he did (here describe the offense as in cases of indictment).

G. H. Solicitor.'

The misrecitals of the code sections, in view of the full information of the nature of the offense disclosed by Counts 1 and 2, may in our opinion be rejected as surplusage. As stated in Harper v. U.S. 5 Cir., 27 F.2d 77, 79, 'The statement that the facts violate a certain section of the statute is nothing more than the pleader's conclusion, which may or may not be correct, and neither adds nor detracts from the allegations.'

Section 188 of Title 2, Code of Alabama 1940, is as follows: 'No person shall sell any adulterated milk or cream, or any milk or cream having therein any foreign substance or coloring matter, or any chemicals or preservatives, whether for the purpose of increasing the quantity of milk or cream or for improving its appearance, or for the purpose of preserving the condition or sweetness thereof, or for any other purpose whatsoever.'

Section 304 of Title 2, Code of Alabama 1940, covers all adulterated food, and is as follows: 'No person within this state shall manufacture for sale therein, have in possession with intent to sell, offer or expose for sale, sell, or deliver any article of food or drugs which is adulterated or misbranded within the meaning of this article.' Both sections carry the same penalties for breaches thereof.

In our opinion, Counts 1 and 2 of the complaint, treating the references to the code sections appearing respectively in each count as surplusage, adequately informed the accused of the offense he was charged with committing, and the court properly overruled the demurrers thereto.

No necessity arises for considering the court's action in permitting the state to amend the complaint by filing Count 3, as no demurrer was filed to this count, and the jury returned a general verdict of guilty. Under such circumstances the general verdict will be referred to the good counts and the conviction will be sustained. Rowland v. State, 55 Ala. 210; May v. State, 85 Ala. 14, 5 So. 14; Levoy v. State, 28 Ala.App. 94, 179 So. 391; Dorgan v. State, 29 Ala.App. 362, 196 So. 160.

In several grounds of his motion to set aside the verdict appellant sets out that the counts of the complaint do not charge the appellant with knowingly and intentionally placing water in the milk.

In Smith v.State, 223 Ala. 346, 136 So. 270, 271, the accused had been convicted of giving false measures of gasoline in violation of Section 243, Agricultural Code, 1927, Section 601, Title 2, Code of Alabama 1940. No knowledge or intent was charged to the accused....