Commonwealth v. Hufnal

Opinion by Orlady, J., The defendant, a dealer in milk in the city of Philadelphia, was convicted under an indictment in which she was charged with unlawfully selling “ a certain adulterated article of food, to wit, certain milk from which a certain valuable and necessary constituent and ingredient had been wholly abstracted, contrary to the act of the general assembly in such case made and provided, and against the peace and dignity of the commonwealth; ” and in a second count for so selling “ a certain adulterated article of food, to wit, one or more quarts of milk from which a certain valuable and necessary constituent and ingredient had been in part abstracted.” The indictment was under Act of June 26, 1895, P. L. 817, to which the defendant pleaded not guilty. This act of assembly to provide against the adulteration of food, and providing for the enforcement thereof, defines by section 2, “ The term ‘ food ’ as herein used, shall include all articles used for food or drink by man, whether simple, mixed, or compound,” and by section 3, “ An article shall be deemed to be adulterated within the meaning of the act: (a) In the case of food, (1) If any substance or substances have been mixed with it so as to lower or depreciate or injuriously affect its quality, strength or purity. (2) If any inferior or cheaper substance or substances have been substituted wholly or in part for it. (3) If any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it. (4) If it is an imitation of, or if sold under the name of another article. (5) If it consists wholly or in part of a diseased, decomposed, putrid, infested, tainted or rotten animal or vegetable substance — 326 — whether manufactured or not, — or in case of milk if it is the produce of a diseased animal. (6) If it is colored, polished, or powdered, whereby damage or inferiority is concealed, or if by any means it is made to appear better or of greater value than it really is. (7) If it contains any added substance or ingredients which is poisonous or injurious to health; provided that the provisions of this act shall not apply to mixtures or compounds recognized as ordinary articles or ingredients of articles of food, if each and every package sold or offered for sale be distinctly labeled as mixtures or compounds, and are not injurious to health.” The defendant was convicted and brings this appeal. The health of the people of the commonwealth must stand at the very head of legislative considerations, and the interpretation of this statute must be made by the same rules which have always determined questions affecting the life, liberty, and happiness of our people. All new laws, though penned with the greatest of technical skill and passed upon the fullest and most mature deliberation, are considered as more or less obscure and equivocal until their meaning is fixed and ascertained by a series of particular discussions and adjudications: Dwarris on Statutes, 49. It is legislative language we are to construe, and it must be received, not necessarily according to its etymological meaning, but according to its popular acceptation, and especially in the sense in which the legislature is accustomed to use the same words: Phila. & Erie R. R. Co. v. Catawissa R. R. Co. 53 Pa. 20. The sense given to particular words by our great lexicographers is always entitled to weight, yet where a word is used in an act of assembly, regard must be had to the circumstances surrounding its use: Penna. R. R. Co. v. Price, 96 Pa. 256. The term “skimmed milk” is not a technical word, or term of art, and the parties must be presumed to have used it in its known sense: Garman v. Potts, 135 Pa. 506. The testimony of experts would not aid the jury in determining the meaning or signification of a well known and frequently used word in the community by explaining how that particular term was used, or what it was understood to mean in 'the dairy trade or by the public at large. The jurors were as competent as the expert. — 327 — Where the circumstances can be fully and adequately described to the jury, and are such that their bearing on the issue can be estimated by all men, without special knowledge or training, opinions of witnesses, expert or nonexpert are not admissible: Graham v. Penn. Co., 139 Pa. 149; Com. v. Gibbons, 3 Pa. Superior Ct. 408. It is the duty of the courts so to construe statutes as to meet the mischief and to advance the remedy, and not to violate fundamental principles; to bring sense out of the words used and not to bring a sense into them, to give the words a reasonable construction: Dwarris on Statutes, p. 144. The commonwealth proved, that the article seized by the milk inspector of the board of health of Philadelphia was what is known as separator skimmed milk in a forty-quart can — ■ marked with the name “ E. & B. Darlington, Chadds Ford” and “skimmed milk,” and the manner o£ producing the different grades of skimmed milk was as follows: plain slum milk is secured by allowing whole milk to stand until the cream rises to the surface and then by means of a dipper or similar implement the cream is skimmed from the surface and the residue is slummed milk. By the Cooley process, milk is immersed in cool water, and after the cream has risen, the milk is drawn from beneath the cream, and that which is drawn off from beneath the cream is called Cooley slummed milk, and has less of the butter fat than hand skimmed milk. By the separator process, the milk is passed through a centrifugal separator under rapid motion by which the cream and fats are forced to the sides of the apparatus and the product left is separator skimmed milk, — with nearly all the butter fats abstracted. As shown by the evidence in this case, milk is not regarded as a definite chemical compound, nor even as a mixture of bodies in fixed and invariable proportions. The cows of different breeds and even the milk of the same animal may be subject to wide differences. The age, food, health, habits and treatment of the animal always affect the quantity and quality of the milk. And while the ordinary method of separating the cream, either for direct use or for butter making, is by allowing it to form on the surface and skimming it off with a spoon, ladle, or — 328 — similar implement, ingenious adaptations of machines have been introduced to more rapidly and effectively part the butter fats from the other constituents. The residuary product has its distinctive name, separator skimmed milk, to indicate just what has been accomplished— that a valuable and necessary constituent has been wholly or in part abstracted from it, not only from the original milk, but as well, from the milk known to the trade as skimmed milk. It cannot be urged that she was careful, honest, or innocent in selling under the label, in large letters, “ Skimmed Milk,” that which she knew was not so recognized in the trade, or by the board of health of the city. She must have known that it tended to cheat the public by the false name which she gave to it, and admitted it was not as nutritious or valuable as a health food. The name on the milk cans, taken with her knowledge of the contents, was a concealment and misrepresentation of its quality and food merit; one of the things which the legislature intended to prevent in this Pure Food Law. The fact that scientific experts may pronounce a manufactured article, intended for human food, to be wholesome and not injurious, and that in a pure state it may be thus good for food, does not render it incompetent for the legislature to prohibit the manufacture and sale of the article, if in the judgment of the legislature, and not of the courts, it is necessary to the protection of the lives, health and property of the citizens, and to the preservation of good order and the public morals: Commonwealth v. Powell, 114 Pa. 265; affirmed in Powell v. Commonwealth, 127 U. S. 678; Commonwealth v. Shirley, 152 Pa. 170. By the means used in this case a fraud is practised on the public, in delivering to the purchaser, a cheaper as well as an entirely different article, and on the honest dealer who must be driven from the market by such deceit. Skimmed milk, as such, is a legitimate article of trade and is sold in large quantities for uses to which the purchaser can properly apply it. Usage and custom have not only given this product a name, but qualities and attributes which are associated with the name. As such, it is purchased and used for special purposes. The — 329 — demand for tbe different grades of milk has been met by new devices which furnish new results, and each should be given a distinctive name to truthfully represent the strength, purity, and health merit of the product. The. sale of these is not prohibited by the act of 1895, if they are honestly made as articles, or ingredients of articles, of food; and each and every package, sold or offered for sale, be distinctly, labeled as mixtures or compounds; and are not injurious to health. This difference was certainly known to the defendant, as her testimony not only discloses full knowledge of the different grades, but as well, that the product which she sold as indicated by the marked can, “ Skimmed Milk,” was not that which she recognized as “ Skimmed Milk ” but an entirely different article called “ Separator Skimmed Milk; ” the.market value of the latter being one half the former, with nearly all the butter fats extracted by mechanical means. When selling to retail customers she would put in the “ Separator Skim Milk ” some hand-skimmed milk to render it more like the hand-skimmed article. She also testified that she did not buy skimmed milk but separator milk. And on cross-examination: Q. “ Are you able to tell his honor and the jury whether or not any valuable ingredient or constituent had been taken from the separator milk before you sold it ?. ” A. “ That I could not say, I sold it just as I received it.” Q. “ You know the fat is taken out of it do you not?” A. “Yes, sir.” Q. “Do you regard the fat as a valuable ingredient in milk as a food ? ” A. “ I suppose it is.” Q. “ And the fat is taken out of the separator milk you sell?” A. “A portion of it.” Q. “Is it not almost all; substantially all?” A. “That is the cream, you mean?” Q. “Yes, I mean the butter fat.” A. “Yes, sir.” Q. “Substantially all of it is taken out?” A. “Yes, sir. I suppose.” In this, the defendant plainly admits the sale to have been made in direct violation of the prohibition contained in the statutory definition of adulteration “6 th . . . . or if by any means it is made to appear better or of greater value than it really is.” Again, the ordinance to prohibit the sale of adulterated or impure milk in the city of Philadelphia, offered in evidence in her defense, and the Act of Assembly, July 7, 1885, P. L. 260, to which frequent reference was made during the trial, puts the question of her knowledge past all doubt. — 330 — The learned jndge under this evidence was right, referring to the separator skimmed milk, — in saying to the jury, “ Milk so treated is not skimmed milk, and therefore, cannot, properly take its place in the ranks of skimmed milk for the purpose of sale.” The sale of nine forty-quart cans of separated milk was admitted. The sole question was, whether there had been any valuable or necessary ingredient or constituent wholly or in part abstracted from it. And under the defendant’s evidence there was no dispute as to this. The argument of counsel to show that separator skimmed milk, Cooley skimmed milk, and plain skimmed milk are one and the same article is not convincing in view of the defendant’s admission, and the testimony of her witnesses. The merit of this admittedly inferior article of milk for general purposes as a health food, as compared with other grades, is largely a matter of opinion based on training and experience, but the legislature evidently intended that sales of all articles of food'or drink for use by man should be so marked and sold as to not leave in doubt, questions affecting their strength, quality or purity; and to prohibit sales being made under a label which deceitfully misleads, and by which the article sold, “6th is made to appear better or of greater value than it really is.” There was no error in saying: “ It seems to me, therefore, if you come to the conclusion that skimmed milk means milk which has been skimmed in the ordinary acceptation of the term, by the removal superficially of the scum or cream that has risen to the surface, and that it has certain valuable ingredients always present to an appreciable or to a large extent; and that the removal of the cream by the separator process, while it affects the taste and appearance of the milk to some degree, yet does not so materially do so as to put every one on his guard, but does really diminish the nutritive properties of the article produced by the abstraction of all the cream instead of leaving two fifths thereof in the milk, your verdict should be for the commonwealth. If the article was sold generally as skimmed milk because the new product does not answer to the old name, because it has been obtained by the entire abstraction of a valuable ingredient, and because, although it may be useful for some purposes it is not so useful for other purposes, and finally, because — 331 — it is the right of the buyer or consumer, when he goes to buy, to get what he wants. If he wants something which is not forbidden by law, and which suits his palate, though it may not be quite as good as something else, he is entitled to get it, but he is not to be palmed off with a different thing because there is evidence that for some purposes that different thing is as good as anything else. In point of fact, in this case, we have positive proof that for general purposes milk which loses part of its cream is rendered thereby less valuable. A valuable ingredient is partially gone and the legislature forbids its sale for the thing that it was before such valuable ingredient was removed. If it then be subjected to another process, and what is left of the valuable ingredient be also taken out, and it is then sold for what it was before, this is also a breach of the legislative enactment, and if the jury find that this has occurred in the present case their verdict should be for the commonwealth.” The commonwealth, it is true, relied on the sale made to the baker, but the defendant deemed it necessary to - answer, and admitted having made sales to the public almost continuously since 1888. The defense is not required to take up any burden until the prosecution has made out a case sufficient to support a verdict. Burden of proo f is a very different thing from presumption of innocence. The first is a formal rule confined to determining the order in which the proofs are to be brought forward; a rule that ceases to apply as soon as sufficient proof has been introduced to sustain a verdict. The second is a substantial rule, operating during the whole trial, and continuing to operate until the case is finally determined: Wharton’s Crim. Evid., sec. 380. Her admission of facts, under cross-examination on the trial, though not meant to be inculpatory, are as sufficient to sustain the verdict, as if the same facts had been adduced by the commonwealth in chief. The case was carefully tried, and the verdict was fully warranted by the evidence. The assignments of error are overruled and the judgment is affirmed. The record to be remitted to the court below to the end that its sentence may be executed.