
    PROSECUTION FOR SELLING ADULTERATED LARD.
    Common Pleas Court of Crawford County.
    C. W. Miller v. The State of Ohio.
    Decided, 1919.
    
      Adu Iteration — Prosecution under Section 12758 — Variance between Affidavit and Proof as to Kind of Container Used — Principal Guilty Where Sale is Made by Employee.
    
    1. When the affidavit under Section 12758 of the General Code charges. one with unlawfully selling one “can” of lard which was adulterated, and the evidence shows a sale of two pounds of lard in a paraphine dish or container, this is not a variance.
    2. Where the evidence shows such sale was- made by an employee authorized to make sales, the principal is guilty and it is not necessary for thfe affidavit to state the sale was made by an agent or employee.
    
      
      E. J. Myers, for plaintiff in error. .
    
      G. A. Meek, contra.
   Wright, J.

The plaintiff in error was prosecuted under Section 12758 of the General Code for selling adulterated lard. He was found guilty before the justice of the peace and error is prosecuted to this court for reversal.

One of the alleged errors is a variance between the allegations of the affidavit and the proof.

The affidavit recites that “one O. W. Miller * # * did unlawfully sell unto one John M. Mote * * * a certain substance purporting, appearing and represented by the said C. W. Miller to be one can of lard and having the semblance of lard, which substance was then and there adulterated, etc.” The evidence showed that a quantity of two pounds of supposed lard was sold, which was placed in paraffin dish or container.

Is this such a variance as, would prejudice the rights of the accused ?

He is charged with selling an adulterated article, without specifying the quantity. He is fully advised in the affidavit of the charge he is expected to meet or plead to, viz., unlawfully selling adulterated lard to a certain person at a certain time and place. It is unnecessary to describe or name the receptacle in which the lard may have been handed over to the purchaser, and if such receptacle is described in the affidavit, such description is surplusage, and proof showing a different receptacle' would not take him by surprise, or require different proof on the part of the accused to meet the charge, or prejudice his rights in any way.

The gist of the offense is the selling of adulterated lard. If he had been charged with selling an adulterated “can” or other container, there might be some reason for claiming a variance.

It is further contended that the sale having been made by an employee, that the employer could not be guilty through the agency of his employee.

The offense charged against the accused is a misdemeanor. In misdemeanors all are principals. Though the sale was made by an employee, the responsibility and guilt of the proprietor is clearly settled by the case of Williams v. State of Ohio, 25 Ohio Circuit Courts, 673, and affirmed by the Supreme Court without report (69 O'. S., 570), in which the court held as follows :

“One'who engages in the business of selling oleomargarine to the public and permits and authorizes its sale by his clerks or employees, is bound to see that the law regulating its sale is complied with, and if it is violated by such employees or clerks, the employer is liable under the statute. ’ ’

There is no prejudicial error in the record and the judgment of the justice of peace will be affirmed.  