Green v. City and County of Denver
| Decision Date | 27 September 1943 |
| Docket Number | 15160. |
| Citation | 111 Colo. 390,142 P.2d 277 |
| Parties | GREEN v. CITY AND COUNTY OF DENVER. |
| Court | Colorado Supreme Court |
Error to County Court, City and County of Denver; M. T. Hancock Judge.
George Green was convicted in the Municipal Court of the City and County of Denver of violating the ordinances prohibiting the keeping for sale of putrid meats and allowing meat and other perishable articles to become unwholesome for human food, and on appeal to the county court in a trial de novo had to a jury he was again convicted, and, to review the judgment entered upon the verdict, he brings error.
F. W. Harding, of Denver, for plaintiff in error.
Malcolm Lindsey, Wayne D. Williams, and Ruth S. Hunt, all of Denver for defendant in error.
Defendant plaintiff in error, owner and operator of a grocery and meat market in Denver, was convicted in municipal court of the city and county of Denver for violating section 956, article 13, chapter 36 of the Municipal Code of Denver 1927, making it unlawful to 'keep * * * or expose for sale * * * any unsound, stale, putrid or diseased meats.' He was also convicted of violating section 1116, article 19, chapter 36 of the Code by allowing meat and other perishable articles, 'adapted or designed to be used for human food * * * to become putrid, decayed, poisoned, infected or in any other manner rendered or made unsafe or unwholesome for human food.'
On appeal to the county court the cases were consolidated for trial and in a trial de novo had to a jury he again was convicted on both charges, and to review the judgment entered upon the verdicts he has sued out a writ of error asking that the writ be made a supersedeas and operate accordingly. He has specified 18 points, upon which he prays that the judgment be reversed. We have elected to dispose of the cause upon the supersedeas application.
The case grows out of an inspection of the store of defendant by two inspectors of the Denver Health Department in the exercise of their duties. Food which they inspected was on various display racks and in an L-shaped meat counter along one wall and across a part of the back of the store. Directly in the rear of the meat counter was a walk-in refrigerator, and back of that an empty room. The inspectors testified to finding 'old, rancid and putrid liver,' of foul odor, 'darker, perhaps [with reference to color], and some mold on it' in the walk-in refrigerator. In the meat counter they found an open container of weiners, which one of them described as 'broken sections, no whole weiners there, little broken sections and slimy in appearance, and I took them out of the counter and examined them, and found mold here and there, and in looking at the bottom, there was a very bad odor in the bunch.' Also in the meat counter were several packages of cheese with the wrappings partly torn off. This cheese was 'obviously molded and old and rancid.' The inspectors found a loaf of bread 'badly discolored, having mold all over the face of it.' In another rack there was a container of stale candy. Between the meat counter and the walk-in refrigerator the inspectors found a barrel of pickled pigs feet which was swarming with tiny flies. One of the inspectors poured a bottle of clorox over the pickled pigs feet and instructed the owner to get rid of them. Some portions of the weiners, liver, bread, cheese and candy were taken to the laboratory of the Denver General Hospital, where later, on the same day, a laboratory examination was made of them by the technician of the laboratory, who found them to be unwholesome and unfit for human consumption. The report of the examination, introduced in evidence as plaintiff's Exhibit A, was as follows:
One of the points urged by defendant is based upon the alleged erroneous admission of this report in evidence, on the theory that the personal testimony of Gorsuch, the technician, under the best-evidence rule was the only competent evidence and should have been introduced if relied upon. Mrs. Gorsuch did, in fact, take the stand and her testimony in regard to her findings was the same as shown in the written report. The admission of the plaintiff's Exhibit A as evidence therefore, even assuming it to be error, would appear to be non-prejudicial, being merely a repetition of her testimony given from the witness stand.
An examination of the record shows that the articles of food so examined and reported upon by the laboratory technician were kept in an ice box until exhibited as evidence in the hearing in municipal court. about 40 hours after they were taken from defendant's store. Just previous to the trial in municipal court these articles were photographed by using color film, and in the subsequent trial in the county court these color photographs were introduced in evidence. The testimony of the photographer who made the photographs was that the first one introduced in evidence (Exhibit B) was taken from a film that was under-exposed and hence the color of the liver was shown as darker than in reality it was; that in the case of the other exhibits the photographs were accurate pictures of the objects photographed, even as to color. One error specified is that Exhibit B was admittedly inaccurate in respect to the color and was inadmissible in evidence. Because the photographer frankly explained to the jury that the film had been under-exposed and that the color therefore was not wholly accurate, we do not believe that prejudicial error resulted from the admission of this exhibit.
These photographs showed not merely the articles of which complaint was made by the inspectors but beside each offending article was placed a fresh piece of food of the same type, thus affording a comparison between the appearance of the fresh and stale foods. The defendant now claims for the first time that there is nothing in the testimony to show that the fresh weiners were of the same type...
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