Commonwealth v. Spear

Devens, J. The first and second sections of the Pub. Sts. c. 57, (the second section being amended by § 3 of the St. of 1884, c. 310,) provide for the appointment of inspectors of milk, who may enter all places where milk is stored or kept for sale, and that “ all persons engaged in the sale of milk shall, on the request in writing of an inspector, deliver to the person having the request a sample or specimen sufficient for the purpose of analysis of the milk then in his possession,” &c. “ Said inspector shall cause the sample or specimen of milk so delivered to be analyzed or otherwise satisfactorily tested, the results of which analysis or test they shall record and preserve as evidence.” Section 4 of the St. of 1884, o. 310, provides that, before making the analysis of any sample, the person making the.same shall reserve a portion, which shall be sealed, and, “ in case of a complaint against any person, the reserved portion of the sample alleged to be adulterated shall, upon application, be delivered to the defendant or his attorney.” The defendant contends that these sections provide for5 an exclusive mode of proof of adulteration of milk, in case of prosecution therefor; and that it is only when a lawfully appointed inspector shall have taken the sample, and, following all the provisions of the law, shall have made the analysis and prepared the certificate, that a defendant can be convicted. He further contends that these sections are imperative, and intended to give a defendant the benefit and safeguard of this mode of proof, to the exclusion of any other, the inspectors being public officials required to follow in their conduct the rules defined by legislation. On examination of these provisions, it is seen .that the statute intended to provide for a peculiar and somewhat unusual mode of proof of adulteration by means of the record of the analyses or tests made. While, if this is relied on, it would be necessary, in order that such record should be evidence, that all the requisitions of law should be complied with, there is no suggestion that other appropriate modes of proof of the offence, as they before existed, are to be rejected. The contention of the defendant would require us to [176] hold that, even if it were proved by the testimony of eyewitnesses that the defendant had actually adulterated milk and afterward sold it as unadulterated, he could not be convicted. If persons not official inspectors may furnish evidence of milk taken and analyzed by them, the’fact that the person who actually testifies is an official inspector is not important. Even if, from failure to have observed all the requisitions of the law, no proper record has been made, his analysis of the milk, the character of which is disputed, properly supported by his testimony as a witness, may be received and considered by the jury. The defendant further contends, that, in order that any analysis of the milk shall be used in evidence, it is necessary that the provision of § 4 of the St. of 1884, a. 310, shall have been complied with. Of this position the defendant appears to have had the full benefit. The witness who was the analyst testified to setting aside a sample of the milk in a bottle properly corked and sealed. It was denied by the chemist to whom he handed it, at the instance of the defendant, that it was thus sealed; and the question of the credibility of the government witness was submitted to the jury. The defendant requested a rilling, indeed, that the fact that the bottle was corked only, and not sealed, was not a compliance with the statute; but, by submitting to the jury the question of the credibility of the government witness who testified that it was sealed, the defendant had the benefit of his request. It appeared by the evidence of the government witness, that he had, in fact, added a few drops of carbolic acid to the specimen reserved, for the purpose of preserving it. The defendant requested a ruling that the reservation of a portion of the sample taken, with the addition of the carbolic acid, was not a reservation in compliance with the statute. This the court refused to give, but submitted, as a fact, the inquiry to the jury, with proper instructions, which do not appear. It was to be determined as a question of fact, and not of law, whether the carbolic acid added to the milk would change its character, make the analysis impossible or difficult, or „in any way injuriously affect the use of the sample for the purpose of analysis. If for practical purposes the sample reserved was not affected by the addition made, the statute has been complied with. Exceptions .overruled.