quantity of "adulterated milk, to which a large quantitythat is to say, four quarts-of water had been added," is not bad for duplicity. One charging that the defendant "had unlawfully kept, offered for sale and sold" adulterated milk, charged but one offense. A charge that the defendant "sold to divers citizens 500 pounds of beef as good and wholesome beef and food" is not bad for duplicity. A statute prohibited the sale or exposing for sale adulterated milk, and an ordinance punished the bringing of watered or adulterated milk into the city for sale. Where this statute and this ordinance were in force a court, in an indictment, proceeded exclusively upon the ordinance, and it was held that it would not justify a conviction under the general statute, and so was not subject to the objection of duplicity, though it contained averments which might sustain a count for the statutory offense. An indictment charging selling and exposing for sale adulterated milk is not bad for duplicity." A charge that the defendant, on the 3d and 4th of August, brought to a certain factory a large quantity of milk diluted with water, alleges but a single transaction, and charges but one offense, though two days are assigned to its commission." Where a statute provides for the punishment of one selling or having in possession, with intent to sell, adulterated milk, a complaint thereon in two counts, the first charging defendant with selling adulterated milk, and the second with having such milk in his possession for sale, the same milk being intended in both counts, and the possession being on the same day as the sale, and preliminary to it, charges but one offense." 1 Commonwealth V. Farren, 9 Allen 489. 2 Commonwealth v. Nicholas, 10 Allen 199. 3 Goodrich v. People, 19 N. Y. 574, 3 Park. Cr. Rep. 622. 4 Polinsky v. People, 73 N. Y. 65, affirming 11 Hun 390. 5 People v. Burns, 53 Hun 274, 6 N. Y. Supp. 611. • People v. Harris, 54 Hun 638, 7 N. Y. Supp. 773. 7 Commonwealth v. Tobias, 141 Mass. 129, 6 N. E. 217. A complaint to recover penalties for violation of the Agricultural Law, alleging that plaintiff does not know, and for that reason can not state, the precise number of barrels contained in each sale and purchase § 594. Knowledge of Adulteration or Unfitness for Food. Where it is necessary to show that the defendant made a sale of food, knowing at the time that it was adulterated or unfit for food, it is necessary to allege knowledge on his part of the adulteration or unfitness. And the same is true where the statute does not use the word "knowingly," but the courts interpret the statute so that he must have had knowledge of the adulteration or unfitness of the food at the time of the sale to constitute it an offense. The word "unlawful" can not take the place of the word "knowingly." Where a statute provided that an indictment should be sufficient if it could be understood therefrom that the offense charged was stated with such degree of certainty that the court may pronounce judgment upon a conviction according to the right of the cause; that none should be quashed for any defect or imperfection which does not tend to prejudice the substantial rights of the accused, it was held that an indictment which alleged, on a certain date, the defendant "unlawfully and knowingly had in his possession the meat of a certain diseased and injured animal, to wit, a steer, then and there, with the unlawful intent to sell the meat of said diseased and injured animal for human food," it was a sufficient allegation of the defendant's knowledge of the diseased condition of the meat at the time of the sale. "The charge that the accused 'knowingly' had in his possession the diseased meat would, in our opinion," said the court, "be understood to mean, in the usual acceptation of such words in common language, that he had the meat in his possession, knowing that it was diseased." In another case the indictment charged of vinegar, but that plaintiff is entitled to recover a penalty of $100 for each separate purchase of vinegar which was sold as cider vinegar, but was not such, is objectionable, as, by implication, alleging in a single count an indefinite number of sales, for any one of which plaintiff has a cause of ac tion. People v. Sheriff, 79 N. Y. S. 783, 78 App. Div. 46. A sale of ten pieces of diseased meat of the same animal has been held to be ten offenses. Kenn v. Bell [1910], S. C. (J.) 13, Ct. of Just. 1 Schmidt v. State, 78 Ind. 41. that the defendant "did, then and there, unlawfully, knowingly and wrongfully kill, for the purpose of selling for food, certain sick, diseased and injured animals," and this was held sufficient to show the defendant knew the animals killed were sick and diseased at the time he killed them. "The charge is," said the court, "that the appellant did 'knowingly' kill for the purpose of selling for food the animals mentioned. The adverb 'knowingly' qualifies not only the verb, did kill, but everything following the same and connected therewith, and will supply the place of a positive averment that the accused knew the facts stated subsequent to the use of such word. ''3 On the contrary, it is held that, as the vendor must know that the meat he sells is diseased it is not enough to merely allege he did "knowingly sell such provisions." Under a statute making it an offense to knowingly sell, or have in possession with intent to sell, the meat of a calf killed when less than four weeks old, it is sufficient to charge that the defendant killed a calf, intending to sell its meat, "well knowing that said calf was less than four weeks old." Where a knowledge of the adulteration is not a necessary element of the offense, then it need not be averred that the defendant knew when he sold the food it was adulterated, and if averred it need not be proven." § 595. Alleging Name of Purchaser. In charging a sale, it is one of the cardinal principles of 24, 42 N. E. 244. The court distinguished this case from Schmidt v. State, 78 Ind. 41, by saying it was decided in accordance with the strict rule of common law pleading. 3 Moeschke v. State, 14 Ind. App. 393, 42 N. E. 1029. 4 Commonwealth v. Boynton, 12 Cush. 499; People v. Worden Grocer Co., 118 Mich. 604, 77 N. W. 315. 5 Commonwealth v. Raymond, 97 Mass. 567; Lansing v. State, 73 6 Commonwealth V. Farren, 9 Allen 489. See also Hobbs v. Winchester, 79 L. J. K. B. 1123, [1910] 2 K. B. 271, 102 L. T. 841, 74 J. P. 413, 8 L. G. R. 1872, 26 T. L. R. 557, following Cundig v. Le Coceq, 53 L. J. M. C. 125, 13 Q. B. Div. 207; Mallinson v. Carr, 60 L. J. M. C. 34, [1891] 1 Q. B. 48, and Firth v. McPhail, 74 L. J. K. B. 458, [1905] 2 K. B. 300. pleading that the name of the purchaser must be given, and the practice is that the name must be proven as laid. If the name be not known, then there must be an allegation that the name is unknown to the grand jurors. But the grand jury may not allege that the purchaser's name is unknown to them, unless it has made a careful investigation to ascertain his name.2 § 596. Description of Defendant. Under a statute which makes it an offense only for one engaged in a particular trade or business, it is necessary to allege that, at the time the alleged offense was committed, the defendant was engaged in such trade or business. Thus, under a statute punishing those engaged in the milk business for selling adulterated milk, it must be alleged that the defendant was engaged in the milk business when the offense was committed. So where a statute punishes persons who, being recorded in the books of the milk inspector as dealers, shall knowingly sell adulterated milk, an indictment which, after alleging the official character of the inspector, and that he kept the records and books as required by statute, charges that the defendant, being a dealer, and being recorded as such "in the books of such inspector," did sell, etc., does not sufficiently show that the defendant was recorded in such books as the statute requires the inspector to keep, and is defective.2 § 597. Oleomargarine. An indictment for having in his possession, with intent to sell, oleomargarine made partly out of oleaginous substances 1 Goodrich v. People, 3 Parker Cr. Rep. 622; People v. Burns, 53 Hun 274, 6 N. Y. Supp. 611, 7 N. Y. Crim. Rep. 92; Feigen v. McGuire, 64 N. J. L. 152, 44 Atl. 972. 2 Marxen v. State, 44 Tex. Cr. App. 41, 68 S. W. 277. 1 Commonwealth v. Flannally, 15 Gray 195. 2 Commonwealth v. O'Donnell, 1 Allen 593; Commonwealth v. McCarron, 2 Allen 157. That it is not necessary to allege that the defendant was a registered milk dealer, see State v. Luther, 20 R. I. 472, 40 Atl. 9. in imitation of yellow butter, produced from unadulterated milk or cream, need not allege it was not "renovated butter" where the possession of such butter is made an offense by another statute, the substance described in the indictment differing from that named in the latter statute.' It need not be alleged the oleomargarine was fraudulently sold. Where a statute prohibits the sale of oleaginous substance colored in imitation of butter, and not made from adulterated milk or cream, alleging that the "defendant did sell two pounds of an oleaginous substance compounded and colored in imitation of yellow butter produced from pure milk or the cream from the same, and such oleaginous substance and compound not having been produced directly and wholly, at the time. of the manufacture thereof, free from coloration or ingredient that caused it to resemble yellow butter produced from unadulterated milk," does not sufficiently charge that the substance sold was not produced from unadulterated milk or cream.3 Where a statute provided that no person should coat, powder or color butterine or oleomargarine, or any compound of it, an indictment charging a sale of two pounds of oleomargarine colored with annatto, whereby it was made to resemble butter, is good. If the offense is selling as nat ural butter, produced from unadulterated milk or cream, any oleomargarine or other substance made in imitation of butter from animal fats, or animal or vegetable oils not the product of the dairy, the indictment must show that the oleaginous substance sold was made from animal fats or animal or vegetable oils not the product of the dairy. An indictment charging a person with selling oleomargarine which, when sold, contained coloring matter, to wit, butter yellow, is sufficient, though it contains descriptive words which partially bring the substance within the statutory definition of oleomargarine. An indictment upon a statute prohibiting "the 1 Commonwealth v. Mullen, 176 Mass. 132, 57 N. E. 331. 2 Fox v. State, 94 Md. 143, 50 Atl. 700, 89 Am. St. 434. 3 State v. Henderson, 15 Wash. 598, 47 Pac. 196. 4 Rasch v. State, 89 Md. 755, 43 Atl. 931. 5 People v. Laming, 40 N. Y, App. Div. 227, 57 N. Y. Supp. 1057. 7 State v. Arata, 69 Ohio St. 211, 68 N. E. 1046. |