Commonwealth v. McCarron , 84 Mass. 157 ( 1861 )

Metcalf, J.

The Gen. Sts. c. 49, §§ 149, 151, require that inspectors of milk shall keep an office, and books for the purpose of recording the names and places of business of all persons engaged in the sale of milk within their limits, and provide that every person, who, being recorded in the books of an inspector as a dealer in milk, shall knowingly sell or cause to be sold adulterated or unwholesome milk, shall forfeit twenty dollars for each offence.

The complaint, in this case, does not allege, as would have been more proper, if not essential, that the inspector of milk for the city of Boston kept books for the purpose of recording the names and places of business of all persons engaged in the sale of milk in that city, but alleges that he kept in Boston “ an office and books, as required by the statute of the Commonwealth in such case made and provided.” We doubt whether this is a sufficient allegation. But without deciding that it is insufficient to sustain a judgment on the complaint, we are of opinion that the complaint is fatally defective by reason of the allegation that the defendant was recorded as a dealer of milk, “ in the books of said inspector,” instead of an allegation that he was recorded in the books aforesaid, or in said books. As the complaint is drawn, it does not allege that the defendant was recorded, or that his name, &c. were recorded, in any such book or books of the in • spector, as the statute requires the inspector to keep.

It .is suggested, in support of the complaint, that it is sufficient, because it charges the offence of the defendant in the words of the statute; “being recorded in the books of the.inspector.” In the statute, doubtless, “the books” mean the books before mentioned, to wit, the books kept for the purpose of recording the names of persons engaged in the sale of milk. ‘But it does not necessarily follow that these words are to be taken to have the same meaning in the complaint which they have in the statute; for the reasons given in Commonwealth v. Bean, 11 Cush. 414, and Commonwealth v. Bean, 14 Gray, 52.

Judgment arrested ^*

* In two other similar cases at the same term, Commonwealth vs. John A. Muedock, and Commonwealth vs. John McDevitt, judgment was arrested for the same cause.

G. Sennolt, for Murdock.

J. F. Pickering, for McDevitt.

And see Commonwealth v. O’Donnell, 1 Allen, 593.