Dorsey v. State

• Decision Date: 16 February 1898
• Citation: 44 S.W. 514
• Parties: DORSEY v. STATE.
• Court: Texas Court of Criminal Appeals

44 S.W. 514

DORSEY v. STATE.

Court of Criminal Appeals of Texas.

February 16, 1898.

Appeal from Parker county court; A. H. Culwell, Special Judge.

H. B. Dorsey was convicted of knowingly and fraudulently adulterating an article of food, and he appeals. Reversed.

Martin & Flanary and G. A. McCall, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of knowingly and fraudulently adulterating an article of food, and his punishment assessed at a fine of $100; hence this appeal.

As appellant made a motion to quash the information, and assigns the refusal of the court to quash the same as error, we will set out the charging part of the information, to wit: "That H. B. Dorsey did then and there knowingly and fraudulently manufacture, offer for sale, and sell a certain article of food, to wit, flour, which was then and there known by him, the said H. B. Dorsey, to be adulterated, contrary," etc. There are two statutes pertaining to this subject, under either of which the indictment may have been drawn. The first is article 427, Pen. Code 1895, which provides, "If any person shall fraudulently adulterate, for the purpose of sale, any substance intended for food, * * * with any substance injurious to health, he shall be punished by fine not less than $50.00 nor more than $500.00." Article 430 provides, "No person shall within this state manufacture, offer for sale, or sell any article of food, which is by him known to be adulterated within the meaning of this law;" and the punishment assessed is a fine not exceeding $100. Article 432 of the Penal Code undertakes to more specifically define the meaning of the term "adulteration," and in what it consists. As to foods or drinks, the following are the provisions necessary to be quoted, so far as applicable to this case: "(1) If any substance or substances has or have been mixed with it so as to reduce or lower or injuriously affect its quality or strength. (2) If any inferior or cheaper substance or substances have been substituted wholly or in part for the article." "(6) If it be colored or coated or polished or powdered, whereby damage is concealed, or it is made to appear better than it really is, or of greater value." Appended to this article is the following: "Provided, that the state health officer, may, with the approval of the governor, from time to time declare certain articles or preparations to be exempt from the provisions of this law; and provided further, that the provision of this act shall not apply to mixtures or compounds recognized as ordinary articles of food, provided the same are not injurious to health, and that the articles are distinctly labeled as a mixture, stating the components of the mixture." The proof in this case shows (which was admitted by appellant) that the adulteration was of flour; that is, flour and meal were mixed or mingled together by a bolting process which was in operation in defendant's flouring mill. The mixture or compound contained 90 per cent. of flour and 10 per cent. of corn meal. The contention of the defendant as to the indictment is that it should have stated how the adulteration was made; that is, the contention is that it was necessary to prove an admixture or adulteration of the flour, and to show how the same was adulterated, by evidence, and that the indictment should have contained the allegations, so as to put appellant on notice of what he was charged to answer. For instance, in this case it is insisted that the indictment should have alleged that the flour was adulterated with a certain portion of corn meal, and that said meal was a substance such as to reduce or lower or injuriously affect the quality of the flour, or that said flour was adulterated with meal, which was an inferior or cheaper substance than the flour with which it was mixed. It occurs to us that this contention is sound. There are a number of articles or substances which might be intermingled with flour so as to reduce or lower or injuriously affect its quality or strength, or which are of an inferior or cheaper character; and under our system of criminal pleading the appellant should have been charged...