Commonwealth v. Kolb

Opinion by Smith, J., It is unnecessary to consider either the first count of the indictment or the Act of May 21, 1885, P. L. 22, on which it is based, since, by direction of the court, the defendants were acquitted on that count. Nor does the assignment of error raise any question as to the constitutionality of the Act of June 26, 1895, P. L. 317, on which the second count is based. As the record fails to show the reasons for the motion to quash, we might properly refuse to consider the first specifi [352] cation. As was said by Mr. Justice McCollum, in Com. v. Williams, 149 Pa. 54: “This is certainly a very loose and unsatisfactory practice, from which confusion and injustice may often result. It is necessary, for the protection of the commonwealth and the accused, and for the information of this court on appeal, that the motion to quash, with a specification of the alleged defects or irregularities on which it is based, should appear on the record. It is proper practice, therefore, to require that the motion, and the reasons for it, be reduced to writing and filed.” As in that case, however, it was conceded that the specific objection below was that the indictment failed to show that the offense was committed in the county, the court decided to -consider it. Plere there is nothing to inform us of the objection below, and the argument has aimed at showing a variety of defects, none of which are specified on the record. But as the question of pleading, under the statute on which the second count is based, is one of importance, we have decided to consider it. The objection that the second count is based in part on the act of 1885, and in part on the act of 1895, is without merit. The latter act provides that no person shall manufacture for sale, offer for sale, or sell, any article of food which, inter alia, “ (4) is an imitation of or is sold under the name of another article.” The second count charges that the defendants “ did sell and offer for sale .... as an article of food, a certain oleaginous substance and compound of the same, the said oleaginous substance and compound of the same then and there being an imitation of butter, and did then and there unlawfully and knowingly sell and expose for sale the same, as and for, and under the name of pure butter.” This, assuredly, is an adequate description, in substantially statutory language, of the acts that fall within the statutory prohibition. Its meaning is in no sense qualified by the extraneous matters associated with it; the averment of possession, with intent to sell, and the description of the article indicates the nature of its resemblance to the article for which it was sold. .The language in relation to these matters, while apparently introduced in view of the act of 1885, does not for that reason vitiate the count. The most that can be urged is that it is unnecessary; but even if so it may properly be regarded as surplusage. [353] The objection on the ground of duplicity is untenable. This objection arises only when unconnected acts, each of which is a. distinct offense, are charged in the same count. But when the several acts charged are merely aspects or stages of one transaction, though' each, when alone present, is an offense, it is not duplicity to charge them all. Thus, an assault, though of itself an offense, is but one stage of a battery, and merges in it if the battery be committed; hence, in such case, both may properly be charged in one count. An offer to sell in violation of the act of 1895, though of itself an offense, is but a stage of the contract of sale, and when this contract becomes complete, the offer merges in the sale; hence both may be charged in one count. There may be a conviction of an assault, in the one case, or of an offer to sell in the other, should the evidence be insufficient to prove a battery or a sale. Further illustrations of this principle may be found in Com. v. Miller, 107 Pa. 276. The offer exhibited in the second specification embraces testimony which is clearly competent, material and relevant. The objection urged on the argument, that the witness had not qualified as a expert, is not included in the specification. We may say, however, that any omission on this point, on the part of the commonwealth, was sufficiently supplied by the cross-examination. The remaining specifications require but brief consideration. To bring a case within the prohibition of the act of 1895, it is sufficient if “ any article of food which is adulterated within the meaning of this act” be sold or offered for sale. In the case before us, the offense charged is the adulteration specified in clause 4 of section 3, the sale of an article which is an imitation, or is sold under the name, of another. Such a sale is a violation of the act, though the article sold is itself an unadulterated article of food, and not deleterious to health. Here, the indictment describes it as an imitation of butter; the offense charged is not merely its sale, but its sale “ as and for, and under the name of pure butter.” Neither butter, indeed, nor the article thus sold under its name, is described as an article of food. But the general use of the former as food is of common knowledge, and since the latter is described as offered for sale as an article of food, we may presume, after verdict, that it was such. The omission to instruct the jury as to the effect of evidence of good character, if assignable as error in a case like the pres [354] ent, in the absence of a request for such instruction, could not have prejudiced the defendants. The habitual sale of the article in question, as butter, was admitted by them on cross-examination, and the only matter of fact in dispute was whether or not this article was butter. The good character of the defendants had no possible bearing on this point, nor could it create a doubt respecting the conceded fact of sale. It seems hardly necessary to add that a person who commits an unlawful act is not relieved from the penalty by reason of having been employed to do so by another. The record discloses no error, and the judgment is affirmed.