Commonwealth v. Luscomb

• Decision Date: 30 November 1880
• Citation: Commonwealth v. Luscomb, 130 Mass. 42 (Mass. 1880)
• Parties: Commonwealth v. Aaron E. Luscomb
• Court: Supreme Judicial Court of Massachusetts Supreme Court

130 Mass. 42

Commonwealth v. Aaron E. Luscomb

Supreme Court of Massachusetts

November 30, 1880

Essex.Indictment on the St. of 1880, c. 209, alleging that the defendant, on June 3, 1880, at Lawrence, "had in his custody and possession one pint of adulterated milk, to which milk water had been added, with intent to sell the same in said Lawrence."

At the trial in the Superior Court, before Brigham, C. J., there was no question as to the possession of the milk by the defendant, and his intention to sell the same, as set forth in the indictment.

To show that the milk was adulterated, the government relied upon the evidence of a chemist, who testified that he had analyzed the milk, and found it to contain nine and four tenths per centum of milk solids and ninety and six tenths per centum of watery fluids; and that the adulteration was produced by adding water to pure milk, and there was no adulteration with any other foreign substance but water.This testimony was all the evidence introduced by the government to show the adulteration.

The defendant asked the judge to rule that there was a variance between the allegations of the indictment and the proof; and that the government was bound to prove, in order to sustain the indictment, that water had been added to milk already adulterated.But the judge refused so to rule; and the defendant excepted.

The defendant was then allowed to introduce evidence that the chemist had analyzed samples of milk taken from the same cow as the milk in question, and had found the milk to contain less than thirteen per centum of milk solids; and there was other evidence upon the question whether the milk was natural milk.The defendant contended that, if the milk in question was natural milk, he could not be convicted, even if it contained less than thirteen per centum of milk solids.But the judge ruled otherwise; and submitted the case to the jury, who returned a verdict of guilty; and the defendant alleged exceptions.

Exceptions sustained.

W. S Knox, for the defendant.

F. H Gillett, Assistant Attorney General, for the Commonwealth.

Colt J. Ames & Endicott, JJ., absent.

OPINION

Colt

A penalty is provided by the St. of 1880, c. 209 § 3, for the offence of having in possession "adulterated milk, or milk to which water or any foreign substance has been added."A subsequent section of the same statute declares that, "in all prosecutions under this act,...