Goodrich v. People , 3 Park. Cr. 622 ( 1858 )

By the Court, Balcom, J.

Blackstone says: “The selling of unwholesome provisions” is an offence against public health. (4 Bl. Com., 162.) It is laid down by Bussell “that the public health may be injured by selling unwholesome food.” (1 Russ. on Cr., 115.) This author again mentions “the selling of unwholesome provisions ” as an indictable offence, and remarks: “ It is said, more largely, that the giving of any person unwholesome victuals, not fit for man to eat, lucri causa, or from malice and deceit, is undoubtedly, in itself, an indictable offence.” (2 Russ. on Cr., 286.) The same principle is stated by Roscoe. (Rosc. Cr. Ev., 379, 4th Am. ed., from 3d Lond. ed.) Roscoe further says: “It is a nuisance for a common dealer in provisions to sell unwholesome food, or to mix noxious ingredients in the provisions which he sells.” (Id., 797.) Wharton enumerates “the selling of unwholesome provisions ” among misdemeanors. ( Whart. Am. Cr. L., 36.) Barbour remarks that “ selling unwholesome provisions is a misdemeanor at common law.” (Barb. Cr. Tr., 223.)

The indictment in Treeves’ case charged the sale of five hundred pounds weight of unwholesome bread, “ to be eaten as food.” (2 Russ. on Cr., 286; 2 Chit. Cr. L., 558.) In Dixon’s case the allegation in the indictment was, that the defendant, a baker, supplied to the Boyal Military Asylum, as and for good wholesome bread, divers loaves mixed with certain noxious ingredients not fit for the food of man, which he well knew so to be at the time he so supplied them. Dixon was convicted, and Ms conviction was affirmed in lane. (Rex v. Dixon, 4 Camp., 12; 2 Russ. on Cr., 287; 2 Chit. Cr. L., 559.)

Indictments have been held good which stated the sale and delivery of unwholesome bread to O. D., for the use and supply of himself and others. (2 Chit. Cr. L., 556, &c.) In one case, the objection was taken to the indictment, on a motion in arrest of judgment, that it did not specify that the unwholesome loaves of bread were delivered “to be eaten,” and the court held that the allegation that the loaves were delivered for the use and supply of children must mean that they were delivered for their eating. (4 Russ. on Cr., 116.)

The statement in the indictment in this case that the defendant sold the beef to divers citizens “as good and wholesome beef and food,” means that he sold it to such citizens to be eaten by them. It would be absurd to hold that the language of the indictment authorizes the conclusion that such citizens may have purchased the beef for their dogs, or for any purpose except for themselves or families to eat; and no inference can be “spelled out of” the indictment that the defendant intended to sell the beef to be applied to any use, by the purchasers, other than food for themselves or their families. •

The evil intent of the defendant in making the sale, and the time and place in wMch he made it, are sufficiently averred in the indictment. It is true that the form of the indictment might be improved, but still it is sufficient to uphold the conviction on it. The indictment is not defective because the persons are not named in it to whom the defendant sold the beef, for they were unknown to the jurors. (2 Chit. Cr. L., 558); and it was not necessary to set forth what rendered the beef unwholesome, or to state that the defendant intended to injure the health of the persons who ate it, or that it did injure their health. (2 East P. C., 822 3 Maul. & Sel., 16.)

What the defendant’s wife said to him about the unwholesomeness of the meat did not tend to establish the fact that it was unwholesome; but it was competent evidence to show that the defendant’s attention was called to the condition of the meat before he sold it. It proved very little any way; but it was nevertheless competent evidence on the question whether the defendant knew or believed the meat was bad when he disposed of it.

The questions put to the two physicians were unobjection able. It was proper for the people to establish that the eating of diseased meat does not always cause apparent sickness. It was also proper for them to give their opinions, from the description which other witnesses gave of the sore on the cow’s head, as to the nature of the disease which the cow had, and that it would cause fever, and that the flesh of animals laboring under a fever is unwholesome.

The charge of the court to the jury was substantially correct. I am aware that the broad proposition is asserted by Wharton, that “to support an indictment for knowingly selling unwholesome provisions, the provisions sold must be in such a state as that, if eaten, they would, by their noxious, unwholesome and deleterious qualities, have affected the health of those who were to have consumed them ” ( Whart. Am. Cr. L., 701); and I shall not attempt to controvert this proposition, nor does the charge of the court conflict with it. As I understand the evidence of the physicians, the eating of diseased meat, although it produces no obvious ill effects, does in reality injure the health of those who consume it. The jury must have understood from the charge that they could not convict the defendant unless the meat was in such a state as to injuriously affect the health of those who ate it, but that it was not necessary to his conviction that the injury should be apparent to the senses, if the medical testimony satisfied them that it did or would injure the health of those who partook of it, provided the defendant knew the cow was diseased from which the meat was taken. And this construction of the charge is in harmony with the proposition laid down by Wharton.

Dealers in tainted provisions have no right to palm off their noxious articles until they have prostrated those who eat them by actual sickness. The people must be protected against the sale of unwholesome provisions by the punishment of persons who deal in them, though nobody be made apparently sick by eating them.

The fact that no person was affected injuriously by eating the beef which the defendant sold, was strong evidence that it was wholesome, but it was not conclusive; and this court cannot say but that the jury gave due weight to it in determining the case.

The court did not err in refusing to adopt the three propositions which the defendant’s counsel insisted should be stated to the jury as legal rules to govern them in determining the case. Nor was the court bound to mention them as pertinent suggestions in regard to the questions of fact in the case. The facts were probably discussed before the jury 'sufficiently by the defendant’s counsel; at least, such is the presumption; and the court did not err in the opinion that the charge, as made, embraced the whole law applicable to the case.

The facts that the cow was diseased, and that the defendant knew it, were undisputed ; and the presumption is that no part of an animal that is rotten with disease in any place is fit food for man to eat.

The defendant sold the meat of the cow after his wife had told him she would not like to cook it or eat it, and he took the risk upon himself that it was wholesome, when he disposed of it, knowing that it came from a diseased cow. (Rex v. Dixon, 4 Camp., 12.)

The verdict was not against evidence. The defendant was rightfully convicted; and his conviction and sentence should be affirmed.

The following dissenting opinion was delivered by