Commonwealth v. Luscomb

Colt, J. A penalty is provided by the St. of 1880, c. 209, § 3, for the offence of having in possession “ adulterated milk, or milk to which water or any foreign substance has been added.” A subsequent section of the same statute declares that, “ in all prosecutions under this act, if the milk shall be shown upon analysis to contain more than eighty-seven per centum of watery fluid, or to contain less than thirteen per centum of milk solids, [44] it shall be deemed for the purposes of the act to be adulterated.” § 7. It is contended, on the part of the Commonwealth, that the purpose of the act is to prevent the sale of milk which, when analyzed, shall be found to fall below the required standard of purity; and that all such milk is to be treated as adulterated, without regard to what may have caused its inferior quality. But assuming, without deciding, this to be the true construction, the difficulty is, that, under the allegations in this indictment and the evidence produced at the trial, the jury should have been instructed that the defendant could not be properly con victed, if they were satisfied that the milk in question was as it naturally came from the cow, although they should also find that it fell below the legal standard in quality. The allegation is, that the defendant had in his possession one pint of adulterated milk “ to which milk water had been added,” with intent to sell the same. The language is obscure, but its plain meaning is that the defendant had in his possession milk which had been reduced in quality by adding water thereto. The words “ to which milk 'water had been added ” were thus made essentially descriptive of the article which the defendant was alleged to have in his possession. They identify the charge, and cannot be rejected as surplusage. The question is not whether it was originally necessary to add these words, but whether, having been added, they are so essentially descriptive as to require to be proved. Commonwealth v. Wellington, 7 Allen, 299. Commonwealth v. Pierce, ante, 31. Exceptions sustained.