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must not be sold as milk if, owing to improper treatment of the animal, it falls so far below the standard that it can not fairly be regarded as milk. Thus a milk seller sold milk which was deficient in fat to the extent of 30 percent. The milk was sold in the same condition as it came from the cow, and the deficiency arose from the fact that the cow had not been milked for sixteen hours, during which period much of the fat was absorbed. The seller was convicted of having sold milk below the standard, the majority of the court expressing an opinion that genuine milk produced by diseased or improperly treated cows ought not to be sold as milk. But in a subsequent case, where there was a deficiency of 62 percent, and the lower court found that it arose from the cow not having been milked for fourteen hours, which was the usual practice in the district, on appeal it was held that the lower court ought to have inquired whether the article sold was of the nature, substance or quality of milk, and that under the circumstances there was no evidence upon which a conviction could be based. Where

61 S. W. 171, 83 Am. St. 487, 62 L. R. A. 163; St. Louis v. Liessing, 190 Mo. 464, 89 S. W. 611, 109 Am. St. 774, 1 L. R. A. (N. S.) 918, note; People v. Bosch, 129 N. Y. App. 660, 114 N. Y. Supp. 65.

3 Smithies v. Bridge [1902], 2 K. B. 13, 66 J. P. 740, 87 L. T. 167, 50 W. R. 686.

4 Wolfenden v. McCulloch, 69 J. P. 228, 92 L. T. 857, 20 Cox C. C. 864, 3 L. G. R. 561.

The defendant may show that there has been no physical interference with the milk since it was taken from the cows, though the chemical analysis shows that it contained an excess of fluids. ple v. Salisbury, 2 N. Y. App. Div., 39, 39 N. Y. Supp. 420. He may also show that in standing over night the solids had separated from the

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fluids, and that the sample analyzed was not a fair one, having been drawn from the lower part of the can. People v. Hodnett, 68 Hun 341, 22 N. Y. Supp. 809.

"In Banks v. Wooler (1900), 64 J. P. 245, 81 L. T. 785, 19 Cox C. C. 432, the defendant had sold milk which contained three and fifty-five one hundredths percent of fat (more than the standard), and seven and forty-six one hundredths percent of other solids (less than the standard), and the analyst certified that ten percent of water had been added. The magistrate said that the milk was exceptionally good, and that the offense was trifling, and dismissed the case. Channell and Bucknill, J. J.., said that if the magistrate meant that the milk was exceptionally good after

the standard was "Total milk solids 12.5 percentum by weight; butter fat 3.5 percentum by weight; water 87.5 percentum by weight," it was held that this obviously meant that of the 12.5 percentum milk solids, at least 3.5 percentum should be butter fat, and, so read, the ordinance fixing the standard was not objectionable on the ground that the required standard was a total of 103.5 percentum of ingredients, and was therefore vague, uncertain and contradictory. Where the standard is fixed, all that is necessary to sustain a conviction is to prove that the milk analyzed fell below that standard." Where the statute fixed the standard for milk at not less than 32 percent of butter fat, an offer of the defendant to prove, not that the statute required milk to conform to an impossible standard or test, or that the milk offered for sale should contain constituents that nature did not supply, but that the standard prescribed was unreasonably high, and could not by ordinary care be maintained through all seasons of the year, was held properly rejected by the trial court." If the milk sold or offered for sale falls below the standard fixed by the statute, proof of that fact is conclusive evidence of a violation of the law.8 A statute, however, declaring that milk shown by an analysis to contain more than 88 percent of watery fluids or less than 12 percent of milk solids shall be deemed, for the pur

the adulteration they were justified in dealing with the case as they did. This does not aver that an offense had not been committed, but merely that it was of such a trifling nature as not to call for the infliction of a fine or costs." Bell's Sale of Food and Drugs Act (5th Ed.) 24. See also St. Louis v. Ameln (Mo.), 139 S. W. 429.

5 Ex parte Hoffman, 155 Cal. 114, 99 Pac. 517.

State v. Luther, 20 R. I. 472, 40 Atl. 9.

Weigand v. District of Columbia, 22 App. D. C. 559.

8 People v. Bowen, 182 N. Y. 1, 74 N. E. 489, reversing 97 N. Y. App. Div. 642, 90 N. Y. Supp. 1108; St. Louis v. Liessing, 190 Mo. 464, 89 S. W. 611, 109 Am. Rep. 774, 1 L. R. A. (N. S.) 918.

In such an instance it is not error to charge the jury that the extent and limit of their inquiry is whether the defendant sold or offered for sale the milk as charged, and whether in fact it contained less than the required percent of butter fat. Weigand v. District of Columbia, 22 App. D. C. 559.

pose of this Act, adulterated, merely prohibits the sale of milk under a certain standard of quality, and does not operate as a rule of evidence." "In the absence of any standard fixed by regulation or statute the court may decide for itself what is a fair and reasonable standard of purity or quality, and in general must do so upon the evidence of experts, and if it is shown that the article sold is below such standard, that is evidence that the law has been infringed. ''1o

§ 531. Article Unknown when Statute Enacted-Condensed Milk.

A statute upon the subject of pure food may cover an article not known at the time of its enactment. Such was an instance of a statute enacted before "condensed milk" or "condensed skimmed milk" was known.1 But in Massachusetts a different conclusion was arrived at. The charge was that the accused had in his possession with intent to sell "milk to which water had been added." The evidence was to the effect that the defendant, having in its possession 120 quarts of what was called "concentrated milk," had added thereto 360 quarts of ice water, one gallon of heavy cream containing 40 percent of milk fat, and four gallons of "concentrated skimmed milk." The defendant put in evidence the following uncontroverted evidence: "The defendant obtained a license under letters patent of the United States for the production and sale of 'concentrated milk' [in 1908], and built and equipped a factory for that purpose in Vermont. It bought from farmers in that vicinity the best milk obtainable, such as was by test up to or above the standard fixed by the statutes of this [Massachusetts] commonwealth. From this milk it separated the cream, and treated separately the cream and skimmed milk. The cream was treated for some hours to a temperature of not more than 140 de

9 State v. Newton, 45 N. J. L.

469.

10 Kench v. O'Sullivan, 10 N. S. W. L. R. 605, 27 W. N. (N. S. W.)

137; Roberts v. Leeming, 69 J. P. 417, 3 L. G. R. 1031.

1 Reiter v. State, 109 Md. 235, 71 Atl. 975.

grees by means of hot water pipes or jackets applied to the containing tanks, with the result that the cream became pasteurized at a temperature lower than that of ordinary pasteurization, the greater part of its water was evaporated, the bacteria were destroyed, and beneficial changes in it took place, so as to increase the time during which it would remain fresh and sweet, whereby it was purified and yet retained the taste and all the digestive and other qualities of the best fresh cream. The skimmed milk was simultaneously treated in other tanks by a similar application of heat and at the same time agitated and cooled by cold air blasts for about five hours. This brought about the evaporation of at least three-fourths of the contained water, together with all odor from barns or cows, and killed the most of the bacteria in the milk. The original skimmed milk was thus concentrated and reduced to about one-fourth of its original volume and was at the same time purified or pasteurized, but at a low temperature, so that the milk solids were not so far cooked or changed as to make them less digestible or nutritious than in the original milk. The cream and the skimmed milk, thus separately treated, were then in certain proportions carried through pipes into a mixing tank, where they were blended according to a formula, so that the milk solids and the fat should be not less than four times the amount required by our statutes for standard milk and the water should not exceed one-fourth part of that allowed for such standard milk. This final product was the 'concentrated milk' manufactured by the defendant, to which it added three parts of water, with the intention of selling the mixtures thus produced. Qualified experts also testified for the defendant that the chemical changes produced by the process stated were a mild form or incipient stage of curdling or coagulation of the protein of the milk, like that of the white of a soft boiled egg; that there was some precipitation of the sugar and the phosphatic substances, the water and the gases were driven off, and the bacteria were reduced in number from several hundred thousand down to a few hundreds; that the concentrated product was not milk, but

a manufactured product made from milk as a raw material; that the pasteurization process used by the defendant for cream differed from the ordinary pasteurization and the concentration process used for the skimmed milk was different from any method previously known or used for evaporation or condensing milk; and that the defendant's 'concentrated milk' was not a condensed milk such as was previously known in commerce. One of the witnesses testified that whole or natural milk is milk as it is taken from the cow's udder; that the defendant's product was not milk and was not evaporated milk, which is whole or natural milk with the cream in and evaporated, and that it was not the ordinary condensed milk of commerce, but that he would call it 'a mixture of concentrated skim and pasteurized cream.' There was no evidence as to what was generally known or dealt with in the trade as milk. It appears to have been undisputed that the mixture which the defendant intended to sell, being substantially a mixture of the 'concentrated milk' with three parts of water, was fully up to the standard fixed by the statute,2 was not adulterated, and had no water or foreign substance added to it, except as has been stated, by the addition of three parts of water to one part of 'concentrated milk'." Upon these facts the Supreme Court of the State held that the "concentrated milk" in question was not "milk" within the meaning of the statute prohibiting the adulteration of milk. "It has been suggested," said the court, "that as there is no dispute that the mixture which the defendant produced by adding water to its 'concentrated milk' did contain water which had not come from the cow, but had been added to the mixture, the mixture itself was within the meaning of the statute milk to which water had been added. But we are unable to accept this argument. If it were sound, then for the same reason one who sold or had in his possession with intent to sell ordinary condensed milk which had been so extended as to resemble natural milk in appearance would be liable to conviction upon a charge like this. When the Legislature

2 St. 1908, ch. 643.

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