People v. Kibler — 8 N.Y. St. Rep. 707

Majority

p. 707

The People of the State of New York, Resp’t, v. Charles Kibler, App’lt.^[1]

(Court of Appeals,

Filed July 1, 1887.)

Headnote

1. Adulteration op milk—Laws 1885, chapter 183, and chapter 458— Criminal intent not necessary.

As the law stands, relating to the adulteration of milk, knowledge or intention forms no element of the offense. The act alone, irrespective of its motive, constitutes the crime.

2. Same—Skimmed milk.

The prosecution were not bound to prove why the milk was below the standard. If the effect came from skimming the milk, and the sale was within the exception of the statute, that was matter of defense.

Giles Stillwell, for app’lt; George T. Quinby, for resp’t.

The appellant was convicted for selling adulterated milk under the provisions of chapter 183, Laws 1885, as amended by chapter 458 of that year. Section 1 provides that ‘ ‘ no person or persons shall sell or exchange, or expose for sale or exchange, any unclean, impure, unhealthly, adulterated, or unwholesome milk.” It was proved that one Vandenburg, on August 25,1885, purchased at defendant’s store one pint of milk, which was shown by a chemical analysis to have contained 89.04 per cent of fluids and 7.78 per cent of milk solids, and so falling below the standard fixed by the act, came within its definition of adulterated milk. There was no dispute about these facts; but the contention of the defendant is that he was not allowed to show an absence of criminal intent, or go to the jury upon the question whether it existed, but was condemned under a charge which made his intent totally immaterial, and his guilt consist in having sold the adulterated article whether he knew it or not, and however carefully he had sought to keep on hand and sell the genuine article.

As the law stands, knowledge or intention forms no element of the offense. The act alone, irrespective of its motive, .constitutes the crime. That conclusion was necessarily involved in our decision of People v. Cipperly, 101 N. Y., 634 , and 37 Hun, 323 . On the trial of that case the question was directly presented. While the principal defense was the invalidity of the statute upon constitutional grounds, and that branch of the contest dwarfed all others in the discussion, it was nevertheless true that the defendant, by offers of evidence and exceptions to rulings and to the charge, insisted that there could be no conviction without proof of a criminal intent, and that he should be permitted to establish an innocent purpose. The point was'

p. 708

presented at general term. If well taken, it was ground for a reversal; but, while that tribunal disagreed upon the constitutional question, it indicated no doubt about the other. The majority, who thought the law invalid, construed it as requiring a conviction upon proof of the sale Of milk below the standard, “right or wrong,” and said expressly that “the testimony that tended to show that he was careful, honest and innocent in this transaction ought to have been considered, and if believed, ought to have resulted in his acquittal; but under this statute such evidence can have no weight.” The justice who dissented held that the law was constitutional, and the conviction should be-affirmed,—a conclusion which he could not have reached if the question of intent had been erroneously excluded. That dissenting opinion we adopted on the appeal to this court, and, reversing the general term, affirmed the conviction.

The wisdom or prudence of the law is not here in question. If there was any reasonable ground to doubt its meaning in the face of its plain language, that doubt was largely founded upon a possible inference from the terms of section 14 of the act of 1884 (chapter 202), which made the prohibited omissions or commissions “presumptive evidence of a willful intent ” to violate the different provisions. It was argued that, if intent was immaterial, the presumption raised was needless. But in the amendment of 1885 that provision was omitted, and section'17, chapter 458, enacted that the simple omission of things directed, or commission óf things prohibited, should be evidence of the violation of the act, and was in force when the defendant made the sale for which he was convicted. There remains .no reasonable doubt of the legislative meaning; and the ‘constitutional power to so enact we have distinctly affirmed. The prudence of its exercise may be debatable, but is not ’•indefensible. It is notorious that the adulteration of food products has grown to proportions so enormous as to menace the health and safety of the people. Ingenuity keeps pace with greed, and the careless and heedless consumers are exposed to increasing perils. To redress such evils is a plain duty, but a difficult task. Experience has taught the lesson that repressive measures which depend for their efficiency upon proof of the dealer’s knowledge, and of his intent to deceive and defraud, are of little use, and rarely accomplish their purpose. Such an emergency may justify legislation which throws upon the seller the entire responsibility of the purity and soundness of what he sells, and compels him to know and to be certain. We see no reason to change our ruling either as to the construction of the act or its constitutionality.

An exception was taken to the charge of the court con

p. 709

struing the provision of the statute relating to “ skimmed milk.” We not think that question was in the case. The proof on the part of the prosecution was of the sale of one pint of milk which was below the lawful standard. That made a prima facie case. Why the milk was below the standard, or by what means the result had been accomplished, the prosecution were not bound to prove. If the effect came from skimming the milk, and the sale was within the exception of the statute, that was matter of defense, and especially for the reason that the fact, if it existed, was one peculiarly within the knowledge of the defendant, and which he could readily prove by his own testimony. But he gave no such evidence, and nothing in the proof raised the question in the case. The ruling, therefore, was immaterial, and the defendant not entitled to the charge which he asked.

The judgment should be affirmed.

All concur, except Rapallo, J.. not voting, and Peckham, J., absent.