Commonwealth v. Lutton

Barker, J. The complaint does not refer to any statute except in the most general terms. The defendant contends, and the government concedes, that it is based upon the Pub. Sts. c. 68, § 16. The St. of 1886, c. 317, § 4, requires that every person who conveys" oleomargarine or butterine in carriages or otherwise, for the purpose of selling the same in any city or [393] town, shall be licensed by the inspectors of milk of such city or town to sell the same within the limits thereof. But the remainder of the section makes it clear that it was intended to apply only to sales from carriages or other vehicles. As the present complaint has no allegation that the defendant carried or exposed the articles in a carriage or other vehicle, it could not be sustained as a complaint under the St. of 1886, c. 317, § 4, and we consider it as based upon the Pub. Sts. c. 68, § 16. So considered, it cannot be sustained. Oleomargarine and butterine are provisions. The word includes all articles of food. The articles with which it is charged the defendant went about, and which he exposed and sold, are therefore included among those "which any person may go about selling or exposing for sale under the authority of the Pub. Sts. c. 68, § 1; and the acts charged are not prohibited by the Pub. Sts. c. 68, § 16. The complaint therefore alleges no offence, and the defendant cannot be convicted under it. His bill of exceptions is inartificially drawn, but we construe it as intended to raise the question here decided. See Commonwealth v. Washburn, 128 Mass. 421. Exceptions sustained.