Commonwealth v. Coleman , 157 Mass. 460 ( 1892 )

Allen, J.

The St. of 1886, c. 318, § 1, authorizes inspectors of milk or collectors of samples to enter all places where milk is stored or kept for sale, and to take samples. This implies that they may do so against the objection of the owner or person in charge; and when samples are taken under the authority of this section, a portion of each sample must, if desired, be sealed and delivered to the owner or person in charge. By § 3, if the inspector or collector refuses or neglects to do so after being so requested, no evidence of the result of the analysis can be received.

In the present case, the acts of the collector of samples were not done under the authority of the statute, but they were merely such acts as anybody might have done, and even though he failed to observe the provisions in respect to sealing and delivering to the owner or person in charge a portion of the milk taken by him, his testimony and his acts were not thereby rendered incompetent, because the requirement of the statute does not apply to such a case ; and the defendant might properly be convicted upon proof that his milk was below the legal standard. Commonwealth v. Holt, 146 Mass. 38. Commonwealth v. Spear, 143 Mass. 172. Commonwealth v. Taylor, 132 Mass. 261. The fact that a collector of samples made a purchase of milk in a restaurant and retained a portion thereof for analysis without disclosing that he was such a collector, and without giving to the person from whom it was purchased an opportunity to ask for a sealed sample, will not render evidence incompetent to show that the milk so purchased was below the legal standard. The ruling asked for was rightly refused.

We need not consider whether, if the collector had been acting under the authority of the statute, it would have been his duty to give to the person from whom the milk was taken an opportunity to ask for a sealed sample. Exceptions overruled.