Ferch v. People, 14202.

• Decision Date: 29 November 1937
• Docket Number: 14202.
• Citation: 101 Colo. 471,74 P.2d 712
• Parties: FERCH v. PEOPLE.
• Court: Colorado Supreme Court

74 P.2d 712

101 Colo. 471

FERCH v. PEOPLE.

No. 14202.

Supreme Court of Colorado

November 29, 1937

Rehearing Denied Dec. 27, 1937.

In Department.

Error to County Court, City and County of Denver; Homer G. Preston Judge.

P. H Ferch was convicted for the alleged sale or offering for sale of bad eggs for human consumption, on appeal to the county court after a conviction in the justice court, and he brings error.

Affirmed in part, and reversed in part, with directions.

Mandell Levy, of Denver, for plaintiff in error.

Byron G. Rogers, Atty. Gen., and Reid Williams, Asst. Atty. Gen for the People.

BAKKE, Justice.

This matter presents a review of a conviction of the plaintiff in error, defendant below, for the alleged sale, or offering for sale, of bad eggs for human consumption.

The facts briefly stated are as follows: Defendant conducts a small place of business known as the Hollywood Egg Market within the Home Public Market in the City and County of Denver, where he deals in eggs exclusively. On January 2 1936, about 6:30 p. m., Esta D. Parr, a state food and drug inspector, entered defendant's place of business to make an inspection. He found the defendant engaged in candling eggs in a small room, constituting the back part of his place of business. Parr took a dozen eggs from those which the defendant was taking out of a case for candling; also he took one partly filled can of eggs, and two full ones, which he found on the floor, and, after paying the defendant for the eggs, he left. One can of the eggs he submitted to witness Scott, who was a city food inspector, another can, to the federal inspector, and the dozen eggs to John Miller, state egg and poultry inspector, for analysis.

On February 7, 1936, defendant was arrested on a warrant from the justice court.

The charging part of the information against him was as follows: 'P. H. Ferch, was then and there a duly licensed retail dealer in eggs as provided by law, did knowingly, willfully and unlawfully sell, offer and expose for sale, and have in his possession with intent and for the purpose of sale and distribution, and for the purpose of use for human consumption, diseased, corrupted, and unwholesome provisions, towit: eggs, which eggs were then and there filthy, decomposed and putrid, in this, towit, that said eggs contained mould, bloodrings, blood spots, bloody white, black rot, white rot, mixed rot, and which eggs were wholly unfit for human consumption and the use of which was then and there injurious to the health of the users thereof; contrary to the form of the statute in such case made and provided, and against the peace and dignity of The People of the State of Colorado,' adopting composite language of the 'Sixth' paragraph of section 7, chapter 69, '35 C.S.A. (section 1001 C.L. 1921), commonly known as the 'Pure Food and Drug Act,' and section 12, chapter 128, '35 C.S.A. (S.L. 1933, p. 774, § 2), often referred to as the 'Egg Law,' but the caption of the complaint, warrant and recognizance designated the charge as 'Violation State Food and Drug Act.' Chapter 69, '35 C.S.A. (chapter 30, C.L. 1921).

Following trial and conviction in the justice court, defendant appealed to the county court, where he was again found guilty by a jury.

All of the analysts testified, as a result of their examination, that most of the eggs showed considerable amount of 'bloodspots,' 'chicken manure and generally dirty,' and had a bad odor and were 'rots' and 'bloods.' No evidence to impeach the qualifications of these witnesses appears.

The evidence showed that a short time Before the examination was made, the defendant had received 1 1/2 cases of eggs marked 'bloods' with the notation 'not for human consumption' on the invoice.

Witness Jeanette Miller testified that she had purchased from defendant eggs similar to those contained in the cans taken by Parr, a short time Before he made his inspection.

Ten assignments of error are made, only two of which require our attention for the purpose of disposing of this case: (1) That the defendant was convicted under a statute which had been repealed by implication; (2) that the court erred in admitting certain evidence.

It is agreed that the only section of the Colorado Pure Food and Drug Act (section 7, chapter 69, supra) which the defendant could have been charged with violating is paragraph 'Sixth' of said section, which reads as follows: 'If it [the food] consist in whole or in part of a filthy, decomposed, or putrid animal, or vegetable substance, or any portion of an animal unfit for food, whether manufactured, or not, or if it is the product of a diseased animal, or one that has died otherwise than by slaughter.'

Urged in support of the contention that defendant was convicted under a statute which has been repealed, is that the trial court imposed a fine of $50, which was permissible under said chapter 69, supra, whereas, under section 16, chapter 128, supra, the court is only authorized to assess a fine of not more than $25 for the first offense, and it is not disputed that this was defendant's first offense.

However we are not satisfied that chapter 128, supra, repeals, even by implication, the language quoted above from section 7, chapter 69, supra. The law does not favor repeal by implication, and, if we were to adopt the defendant's reasoning in this case, there would not be much left of the Pure Food and Drug Act. Meat is an article of food covered by that act, and yet, we have special legislation relating to meat, its inspection and sale, conduct of slaughter-houses, etc.; milk is an article of food, as are...