The People of the State of New York, Respondent, v. Charles Kibler, Appellant

The People of the State of New York, Respondent, v. Charles Kibler, Appellant. Under the act of 1885 (Chap. 183, Laws of 1885, as amended hy Chap. 458 of that year), prohibiting the sale of adulterated milk; and making the violation of the prohibition a misdemeanor, criminal knowledge or intent forms no element of the offense. All that is requisite to establish the offense is to show a sale of milk falling below the standard fixed by the act and coming within its definition of adulterated milk. If the sale was of skimmed milk, and if such sale is within the exception of the statute (as to which qumre), this is matter of defense. The act as thus construed is constitutional (Argued June 13, 1887; decided July 1, 1887.) Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made October 22, 18S6, which affirmed a judgment of the Court of Sessions in and for the county of Erie, entered upon a verdict convicting defendant of a misdemeanor. The nature of the offense and the material facts are stated in the opinion. Giles E. Stilwell for appellant. To make an act criminal the intent must concur with the act. (7 T. R. 509; 14 14 Gray, 65-67; Bishop on Stat. Crimes, 231; 7 Humph. 148; 7 B. Monroe, 247; 23 W. Dig. 364.) An honest mistake or ignorance, not- connected with criminal carelessness or negligence or even less than criminal, a mistake or ignorance which no reasonable care or caution would have avoided does, under any humane law, constitute a defense and authorize a submission to a jury as to the guilt or innocence of the accused. (People v. Kerin, 23 W. Dig. 364.) WilUam P. Quin for respondent. The people were simply hound to prove that the milk was below the standard fixed by the statute. (People v. Cipperly, 37 Hun, 323; Comm. v. Keenan, 139 Mass. 195.) If milk below the standard was actually sold, the care or precaution taken by the appellant in his business could be no defense under this statute. (People v. Schaeffer, 41 Hun, 25; People v. Mahaney, id. 28; People v. Noble, 1 N. Y. Cr. R. 459; People v. Storm, G. T., 2d Dept.; People v. Hill, id. 1st Dept.; U. S. v. Bayard, 16 Fed. R. 384; Comm. v. Farren, 9 Allen, 489; Comm. v. Smith, 103 Mass. 444; Comm. v. Wentworth, 118 id. 441, Comm. v. Evans, 132 id. 11; Comm. v. Keenan, 139 id. 195; Farrell v. State, 30 Am. R. 617-620, n.; 33 Alb. Law J., 79, January 2, 1886; 19 id. 84; Wharton’s Cr. Law, § 88.) The authorities cited fully sustain the constitutionality of the section without knowledge and intent as elements of its violation. (People v. Arensberg, 103 N. Y. 399; State v. Smyth, 14 R. I. 100; State v. Newton, 45 N. J. 469.) It was unnecessary for the people to prove the cause of the milk being below the standard. (Fleming v. People, 27 N. Y. 334; Schwab v. People, 4 Hun, 523; Harrison v. White, 81 N. Y. 532.) [MAJORITY — Finch, J.] Finch, J. The appellant was convicted of selling adulterated milk under the provisions of chapter 183 of the Laws of 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, unhealthy, 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; 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 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 (Chap. 202), which made the prohibited omissions or commissions “presumptive evidence of a wilful 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 (Chap. 458) enacted that the simple omission of things directed, or commission of 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 jmrpose. 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 construing the provision of the statute relating to “ skimmed milk.” We do 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 proseeutiou 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 Sapallo, J., not voting. Judgment affirmed.