Quaternick v. State , 84 Tex. Crim. 40 ( 1918 )

The conviction is for selling and exposing for sale adulterated milk, the adulteration consisting in adding water to the milk. The statute defining the offense is article 706, P.C., declaring it unlawful for any person to sell or expose for sale adulterated or impure milk. The article contains a proviso, stating that "skimmed milk" may be sold if on the can or package from which it is taken the words "skimmed milk" are painted.

Appellant attacks the sufficiency of the information upon the ground that there is no negative allegation showing that the sale was not a sale of skimmed milk so marked. We think this contention is unsound. The statute does not contain any proviso authorizing the sale of watered milk under any circumstances, whether skimmed milk or otherwise. To bring it within the rule requiring the negative averment it would be necessary that the terms of the statute be such as to permit the sale of watered milk under some circumstances. If such were the terms of the statute it would then be necessary to show by averment that the sale of watered milk was not under the circumstances permitted. The authorities upon the subject are collated in Branch's Ann. P.C., sec. 510. See also Brown v. State, 74 Tex.Crim. Rep., 168 S.W. Rep., 861; Wilkerson v. State, 44 Tex.Crim. Rep.; Mosely v. State, 18 Texas Crim. App., 311; Blasdell v. State, 5 Texas Crim. App., 263.

The information is also assailed upon the ground that the name of the purchaser of the adulterated milk is not alleged. In support of this contention appellant relies upon Drechsel v. State, 35 Tex.Crim. Rep., declaring it necessary in a prosecution for the sale of intoxicating liquors in localities where such sales are prohibited under the local option laws, to designate the name of the purchaser by averment in the indictment or information. There is, we think, an obvious distinction between the statutes prohibiting sales of intoxicating liquors and the statute under consideration in that in the former a sale must be proved, and, therefore, averred with certainty, to comply with which rule the name of the purchaser is essential. The offense denounced by article 706, supra, consists in the sale or exposure for sale of adulterated milk. In a prosecution under this statute it is not necessary to prove a sale, but proof of possession and exposure for sale of the adulterated article is sufficient, and being sufficient in proof it is likewise sufficient in the averment.

From the evidence it appears appellant was engaged in the business of conducting a dairy and selling milk; that prosecuting witness bought and took from among other bottles of milk in the possession of appellant, and on his milk wagon about 7 o'clock in the morning, a bottle of milk which, on examination, was found to contain water; that is, it showed that 26 per cent of the contents of the bottle was water added to the milk. The defense urged was that this particular bottle of milk was not exposed for sale, but that it was gotten by appellant from another person and not intended for sale but intended to be used by him in exchange for a drink of whisky; that at the time prosecuting witness got the bottle of milk it was the only one in his possession, and it had come into his possession in the manner and for the purpose mentioned. This issue was submitted to the jury in a charge given at request of appellant. It was an issue upon which there was manifestly a conflict of evidence and its solution by the jury against appellant is binding upon this court.

The judgment of the lower court will be affirmed.

Affirmed.

ON REHEARING. June 28, 1918.