Commonwealth v. Kenneson

• Decision Date: 10 January 1887
• Citation: 9 N.E. 761,143 Mass. 418
• Parties: COMMONWEALTH v. KENNESON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 418

9 N.E. 761

COMMONWEALTH v. KENNESON.

Supreme Judicial Court of Massachusetts, Suffolk.

January 10, 1887

COUNSEL

James A McGough, for defendant.

The motion to quash, though not made in the municipal court should have been allowed--First, because the complaint is defective, both in substance and form. The exception as to the 12 per cent. standard, contained in the same clause of the same section (chapter 318, § 2, Acts Mass.1886) upon which this complaint is founded, is a descriptive part of the offense, and ought to have been negatived. 1 Starkie Crim.Pl. 171 et seq., 219; 5 Bish.Crim.Proc. § 639, and note; Com. v. Maxwell, 2 Pick. 139; Com. v. Hart, 11 Cush. 130. Second, because the law upon which this complaint is founded (chapter 318, § 2, Acts Mass.1886) is inoperative and void, as the law it purports to amend or repeal (chapter 57, § 9, Pub.St.Mass.) was itself repealed by substitution, (chapter 352, § 6, Acts Mass.1885.) A repealed statute cannot be the subject of amendment or repeal. And said act of 1886, being void, this complaint describes no offense under existing law, (chapter 352, § 6, Acts Mass.1885.) Sullivan v. Adams, 3 Gray, 476; Bartlett v. King, 12 Mass. 537; Com. v Kelliher, 12 Allen, 480; Ashley's Case, 4 Pick. 21; Leighton v. Walker, 9 N.H. 59; Wakefield v Phelps, 37 N.H. 295. Evidence of the official analysis was inadmissible. The reserving a portion of the sample "before commencing the analysis," as provided in chapter 310, § 4, Acts Mass.1884, is a condition precedent to the procuring, recording, or using of the evidence by analysis. See like provisions in other statutes. Chapter 318, § 3, Acts Mass.1886. It is the time of production, and not the time of the subsequent possession or prosecution, that fixes the standard of the milk. The defendant's possession of the same milk on July 1st did not change the standard; and that it was not up to the 12 per cent. standard is immaterial in this case, because such is not the charge alleged. Chapter 318, § 2, Acts Mass.1886.

Harvey N. Shepard, Asst. Atty. Gen., for the Commonwealth.

The rulings of the court were correct. The motion to quash was filed too late. The evidence of the analysis was properly admitted. It is very evident that the object of the statute (Acts 1884, c. 310, § 4) is to give a defendant a portion of a sample to be tested, that there shall be no chance for a prejudicial mistake, or that such a mistake may be discovered. The defendant claims no such mistake. The meaning of the statute is that all prosecutions for sales in the months of May and June shall be based upon the special standard made for those months. The fact that defendant had the same milk on another and prior day, when a different standard would be applicable, with the same intent, cannot be material in the present prosecution.

OPINION

FIELD J.

The offense of selling, or of having in one's possession with intent to sell, milk "not of good standard quality" was created by St.1886, c. 318, § 2. The quality required by the statute for the months of May and June is different from that for the rest of the year; but this distinction relates to the time when the milk is sold, or kept in possession with intent to sell, and not to the time when the milk is obtained from the cow. As this complaint alleges that, on the first day of July, the defendant had in his possession "one pint of milk not of good standard quality, that is to say, milk containing less than thirteen per cent. of milk solids, with intent then and there unlawfully to sell the same within the commonwealth," it charges an offense within the statute. It is not necessary in the complaint to negative the exception of the months of May and June, because the allegation of time in the complaint is material, and of itself excludes the months of May and June.

The defendant contends that St.1886, c. 318, § 2, is inoperative because it purports to be an amendment of Pub.St. c. 57, §§ 5, 9, and he says that said section 9 was repealed by St.1885, c. 352, § 6, and the argument is that an amendment of a repealed statute is a nullity. By St.1885, c. 352, § 6, "section nine of chapter fifty-seven of the Public Statutes is hereby amended so as to read as follows," etc., and by St.1886, c. 318, § 2, "section nine of chapter fifty-seven of the Public Statutes is hereby amended so as to read as follows," etc., and in each case there follows a sentence which covers the whole subject of the original section, and may well be held to have impliedly repealed the preceding provisions. The intention of the legislature is plain that, after St.1885, c. 352, took effect instead of Pub.St. c. 57, § 9, the sixth section of chapter 352, St.1885, should be in force, and that, after St.1886, c. 318, took effect, section 2 of this statute should be in...