Commonwealth v. Graustein & Co. , 209 Mass. 38 ( 1911 )

Hammond, J.

The evidence of Mott that the substance found in the milk consisted in part of “cow dung” was properly admitted. The objection of the defendant that it should have been excluded on the ground of variance is untenable. While it is true that the complaint charges that to the milk there had been added “ a certain foreign substance, ... a further description whereof is unknown to the complainant,” still, although some witness called even by the government testified as to the real nature of the substance, it by no means follows as matter of law that at the time the complaint was made the complainant did know its nature. In the absence of any evidence to the contrary the presumption is that a further description was unknown to the complainant at the time the complaint was made. Commonwealth v. Thornton, 14 Gray, 41. Commonwealth v. Coy, 157 Mass. 200. And the fact that from knowledge obtained after the complaint was made the government or even the complainant himself could give a further description of the substance is immaterial. And that is so even if the complainant before making the complaint could by reasonable inquiry have been enabled to give a further description. Upon this branch of the case the simple question was whether the allegation that a further description was unknown to the complainant was true. In the absence of evidence to the contrary the presumption is that it was true, but when there is evidence in rebuttal of such presumption then the question is for the jury. Commonwealth v. Thornton, ubi supra. But, even if it be assumed in favor of the defendant that there was a variance, it appears that the essential elements of the crime are correctly stated, and it does not appear that by the variance the defendant was prejudiced in its defense; and hence the defendant is not entitled to have this exception sustained. R. L. c. 218, § 35.

Under the instructions the jury must have found that the milk which the defendant had in its possession with intent to sell contained a substance which got into the milk after it had left the cow; that this substance “ could have been kept from getting in there by ordinary, reasonable care on the part of the persons handling the milk from the time it left the cow until the time it was delivered to the customer.” In answer to a specific question they found that this foreign substance was in whole or in part soluble in milk. It is argued by the defendant that these findings are not warranted by the evidence; but upon considering the evidence in detail we are of opinion that they are.

It is strongly contended by the defendant that the foreign substance must be soluble in the milk. In view of the special finding this question becomes immaterial in this case. We do not mean to intimate, however, that in the absence of such a finding there would have been anything in the contention.

The defendant further contends that the statute applies only to cases where the “ foreign substance has been added or caused to be added by the previous voluntary act of some person or persons.” So far as material the statute upon which this complaint is founded reads as follows: “ Whoever, himself or by his servant or agent, . . . has in his . . . possession with intent to sell, . . . adulterated milk or milk to which water or any foreign substance has been added, or milk produced from cows which have been fed on the refuse of distilleries, or from sick or diseased cows, or, as pure milk, milk from which the cream or a part thereof has been removed, . . . shall ... be punished.”

No extended citation of authorities is needed in support of the proposition that in this class of cases the criminal intent is immaterial. See Commonwealth v. Mixer, 207 Mass. 141. The history of the milk legislation in this Commonwealth shows conclusively the determination of the law making power to protect the community from adulterated or impure milk. The ultimate purpose is to have pure milk, and to impose upon milk dealers the duty of seeing that the milk be such. In many cases it would be practically impossible to prove that the foreign substance had been purposely added. Nor does it make any difference to the consumer in what way it has been added. The intent is to see that impure milk be not sold, irrespective of the question by whom or in what way it became impure. In view of the history of the legislation on this subject, the emphasis placed by the Legislature upon the need of protecting the community from impure milk, and the fact that whether the foreign substance gets into the milk through a positive act intentional or unintentional, or by accident attributable or not to negligence, is entirely immaterial so far as respects the health of the consumer, which is the ultimate thing to be protected, we are of opinion that the statute is not limited to cases where the foreign substance was added by a previous voluntary act of some person. The instructions to the jury upon this point were sufficiently favorable to the defendant. There is nothing inconsistent with this position in People v. Bowen, 182 N. Y. 1, cited by the defendant.

R. L. c. 8, § 5, provides that the word ‘' ‘ person ’ may extend and be applied to bodies politic and corporate,” “ unless a contrary intention clearly appears.” Considering the evil intended to be reached by this statute we are of opinion that the word “whoever” includes a corporation like the defendant. See Commonwealth v. Boston & Worcester Railroad, 11 Cush. 512; Commonwealth v. Boston Advertising Co. 188 Mass. 348; Commonwealth v. New York Central & Hudson River Railroad, 206 Mass. 417. The case is clearly distinguishable from Benson v. Monson & Brimfield Manuf. Co. 9 Met. 562.

Hxceptions overruled.