Commonwealth v. New England Maple Syrup Co.

Hammond, J. The charge against the defendant is that it [434] sold to one Dostaller “a certain article of food, to wit: syrup, said syrup so sold as aforesaid being then and there adulterated at the time of said sale within the meaning of” R. L. c. 75, § 18. There is no question that a syrup was sold, and the only question is whether it was adulterated within the meaning of either the fourth or the eighth clause (as amended by St. 1910, c. 528) of that section. 1. As to the fourth clause. This clause declares food to be adulterated “If it is in imitation of or is sold under the name of another article.” It is strongly argued by the Commonwealth that this Golden Tree syrup, consisting of a compound of maple sugar, granulated sugar and water, was “in imitation of” maple sugar syrup. But we think that the agreed statement of facts upon which the case was submitted to the jury fails to support beyond a reasonable doubt this contention. We see nothing in the labels upon the body of the bottle in which the syrup was placed, or upon the cork, calculated to show any attempt at such imitation; and the mere facts that the consistency of the two syrups was the same, and that the color of the compound was the same as one of the various colors of pure maple syrup are not enough. Nor was the compound “sold under the name of another article.” Dostaller did not order pure maple sugar syrup, but “Golden Tree Syrup.” He received what he ordered. No deception seems to have been practised upon him. Plainly the article ordered and delivered was the blend known as “Golden Tree Syrup,” and it does not appear to have been known by any other name. So far as the prosecution rests upon this clause it fails. 2. As to the eighth clause (as amended by St. 1910, c. 528). This clause as originally enacted declared an article of food to be adulterated “If it contains any added antiseptic or preservative substance, except common table salt, saltpetre, cane sugar, alcohol, vinegar, spices, or, in smoked food, the natural products of the smoking process; but the provisions of this definition shall not apply to any such article if it bears a label on which the presence and the percentage of every antiseptic or preservative substance are clearly indicated.” R. L. c. 75, § 18, cl. 8. This clause was amended by St. 1910, c. 528, by inserting after the [435] words "smoking process” these words, to wit: “but this paragraph shall not be construed as permitting the use of cane sugar in maple syrup, maple sugar, honey, cocoa, or any other food product in which the presence of cane sugar as a preservative is unnecessary.” In the construction of this amendment the defendant contends that the words “in which the presence of cane sugar as a preservative is unnecessary” apply not only to “any other food product,” but also to the articles of food immediately preceding, namely, “maple syrup,” etc., and that it being conceded that cane sugar “tends to preserve” the maple sugar syrup of the “compound,” the syrup sold is not an adulterated food under this section. But we cannot adopt that construction. We are of opinion that the words “in which the presence of cane sugar as a preservative is unnecessary” do not apply to anything except “any other food product,” and that the effect of the amendment is to prohibit the mixture of cane sugar as a preservative with any of the articles immediately preceding. Under this interpretation of the amendment the article sold was.an adulterated syrup and could be sold only in the manner prescribed in the clause. It is suggested by the defendant that the Golden Tree syrup, although a blend, was of itself a well known article and unit of food, but this is not made to appear in the agreed statement; and in this respect the case differs from Adams v. New England Maple Syrup Co. 210 Mass. 475, where it appeared that the blend was a well known article in the trade. The defendant’s request for a verdict of not guilty was rightly refused. Under the terms of the report the conviction stands, and it is So ordered.