
    PEOPLE v. FULLE.
    
      N. Y. Court of General Sessions,
    
    
      February, 1883.
    Adulteration of Food or Drugs.—Variance.—Criminal Intent Necessary.—Mistake.
    Where a complaint for a violation of L. 1881, c. 407, charges the defendant with selling adulterated cream of tartar, as a drug, and the proof shows its sale by him as an article of food,, the variance is fatal to a conviction.
    
    Although, so far as concerns the letter of the statute, it is made a crime to sell adulterated food or drugs, irrespective of the seller’s intent, yet, by its true construction, in order to convict, it is necessary to establish either that defendant was actuated by a criminal intent, or was guilty of such negligence in the doing of the act, as will supply the place of such intent.
    Hence, where the evidence showed that the sale of adulterated | cream of tartar, was by an honest mistake of fact without fault on t the part of the defendant, the judgment of conviction was set ' aside.
    Appeal by Henry Fulle from a judgment of the court of special sessions of the city and county of New York, convicting him. of selling adulterated cream of tartar as a drug.
    The complaint charged the defendant with a violation of chapter 407, of the laws of 1881, entitled : “ An Act to prevent the adulteration of food or drugs,” section one of which provides s 66 No person shall, within this State, manufacture, have, offer for sale, or sell any article of food or drugs which is adulterated within the meaning of this act, and any person violating this provision shall be deemed guilty of a misdemeanor/5 <&c.
    Further details appear from the opinion.'
    
      Henry G. Atwater, for the appellant.
    
      William P. Prentice, for the respondent.
    
      
      The act does not prescribe the form of prosecution, except in case of impeding an officer in his duty under it, in which case it says the offender “shall be liable to indictment.” § 7.
      By Gode Grim. Pro. § 64, the N. V. special sessions has jurisdiction to try “all complaints for misdemeanors,” unless, &c.
      By § 4, crimes of which courts' of sessions and police courts have jurisdiction, are excepted, with some other classes, from the general rule that all crimes must be prosecuted by indictment. ■
      
    
   Cowing, J.

—This case comes to the general sessions on an appeal from a judgment of the special sessions. The complaint upon which the defendant was tried and convicted in the court below, charged Mm with selling adulterated cream of tartar for a drug and food for the use of man, in violation of chapter 407 of the laws of 1881, entitled: “An Act to prevent the adulteration of food or drugs.”

Upon the trial the prosecution was compelled to and did elect to try the defendant on so much of the charge in the complaint as accused the defendant of selling the article in question as a drug, and upon this charge the defendant was tried and convicted, and sentenced to pay a fine of ten dollars.

The defendant’s counsel claims that the conviction and judgment entered thereon is erroneous and illegal, and upon his argument before this court relies upon four different grounds for a reversal of the judgment: 1. That a printed volume called the United States Pharmacopoeia was improperly received in evidence. 2. That there is no evidence in the case of any sale of cream of tartar as a drug. 8. That there is no evidence in the case of any criminal intent, or of such criminal negligence as in law supplies the place of the criminal intent. 4. That the law, under which the defendant was convicted, is unconstitutional and void.

One of the objects of the complaint, as of an indictment, is to inform the defendant of the accusation made against him, that he may know what, he is called upon to defend himself against, and be prepared on his trial to meet it; and there can be no question, that where the evidence fails to establish the charge in the complaint, the defendant should be acquitted ; and it is also true, that any material variance between the material allegations in the complaint and the proof, is fatal to a conviction ; nor can a defendant be charged and tried for one offense and be convicted of another and entirely different offense. I consider all these propositions elementary, and as so many legal axioms. Bid the defendant, as alleged, willfully or negligently, sell adulterated cream of tartar' as a drug \ If he did, he has violated the law.

As appears from the record, in my judgment, the plain, uncontradicted evidenceestablishes the following facts: 1. That neither the article in question, nor any part of it, was composed of cream of tartar, but was sold under that name. 2. That the defendant at the time of the sale was not a druggist, but was a grocer, and carried on a business pertaining to a grocer. 3. That the defendant did not sell drugs or. medicines as such in his grocery business. 4. That the defendant did not manufacture this article in question, but purchased it from one James E. Armstrong as a pure article, as and for the best in the market, and for which he paid the highest market price. 5. That defendant tried to obtain the best of cream of tartar, and believed that he had done so. 6. That the defendant sold the cream of tartar in question in the regular course of his business as and for an article of food.

If I am correct in supposing that all the foregoing facts are clearly established by the plain uncontradicted evidence in the case, then it follows, in my judgment, that the conviction of the defendant was clearly wrong, for the following reasons: There was a fatal variance between the complaint and the proof, the complaint alleging the defendant sold the article in question as a drug, while the evidence clearly established that he sold it as an article of food. The primary, if not the only object of the law, is the preservation of the public health, and it seeks in one way to do this by prohibiting the sale of adulterated food or drugs for the use of man, but where either food or drugs are sold for other and different purposes and uses, the object of the law is not contravened. Now Dr. Chandler, in his article in Johnson's Cyclopcedia on cream of tartar, gives some of the uses of the same, and among them the doctor says it may be used as a mordant for dyeing-If I understand the. learned counsel for the people aright, he claims that if the complaint had charged that the defendant had sold this cream of tartar as an article of food, which it is, and the proof established that he sold it as and for a mordant for dyeing, that, nevertheless, he could be properly convicted under such a complaint for a violation of the law, for, says the learned counsel for the people, cream of tartar is an article of food, and in this case it wap adulterated and sold by the defendant; and that this would be sufficient to sustain a conviction under the law, irrespective of the fact that the complaint charged thé sale as and for food for man, while the proof established that he sold it for an entirely different purpose to wit: as and for a mordant for dyeing. In my judgment, the rules of criminal pleading would not sanction a conviction under such circumstances, but the variance between the allegation and the proof would be fatal to a conviction.

The third ground urged by the defendant’s counsel why the judgment should be. vacated and set aside, requires a construction of the statute under which the defendant was convicted. So far as the letter of the statute is concerned, it is made a crime for one to sell adulterated food or drugs, irrespective of his intent; but it is claimed by defendant’s counsel that a fair," just construction of the act not only requires proof of the sale of an adulterated article, but also that the sale was made with a criminal intent, or under circumstances of such negligence as in law supplies the place of the criminal intent; and in this claim, in my judgment, the counsel for the defendant is right. Bishop, in his admirable work on the criminal law, in section 287 (7th ed.) says: “The doctrine which requires an evil intent lies at the foundation of public justice. There is only one criterion by which the guilt of men is to be tested. It is whether the mind is criminal. And neither in philosophical speculation nor in religious or moral sentiment would any people, in any age, allow that a man should be deemed guilty unless his mind was so. It is, therefore, a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it cannot exist,” but he holds that', under some circumstances, the negligent manner in which an act is done, may be so gross as to supply the place of the required criminal intent. And again, at sections 808 and 304, the same learned commentator on the criminal law, says : “ All statutes are to be, and constantly are, interpreted with reference to the unwritten law, by the principles of which they are limited* and extended, so as to preserve harmony in our judical system, and promote justice.” *‘Since an evil indent is an indispensable element in every crime, any such mistake of fact as, happening to one honestly endeavoring to discharge all legal and social duties, shows the act complained of to have proceeded from no love of evil in the mind, takes from it its indictable quality. A mistake of .fact, neither induced nor accompanied by a fault or omission of duty excuses the otherwise criminal act which it prompted.”

In my judgment, the foregoing legal doctrine enunciated by Bishop in his book on criminal law, is unanswerable, and construing and interpreting the statute in question by the law as laid down by Bishop, it follows that before a person can be convicted of a crime for its violation, it will be necessary to establish either that he was actuated by a criminal intent or was guilty of such negligence in the doing of the act as will supply the place of the criminal intent.

Does the evidence returned in the record in this case, show such criminal intent or criminal negligence in the doing of the act charged, as to constitute a crime and the defendant,- a criminal ? There is no positive and direct evidence showing a willful and intentional violation of the statute, nor does there seem to me to be any evidence going to show that the defendant was criminally negligent in selling the cream of tartar. On the contrary, on reading the evidence I can come to no other conclusion but that the defendant was desirous of observing the law, and that-in .all that he did lie acted the - part of a careful and prudent man. He purchased the cream of tartar from a dealer in open market. Before doing so, he inquired for the best article, and was told by the dealer, that that purchased was the best. He paid the highest market price for the same, and believed that he was purchasing a pure article, and the best: He bought it for a pure article, and sold it for the same, believing it to be pure.

I think the evidence comes very far short of making the defendant a.criminal. At most the evidence shows in my opinion, that the sale of the cream of tartar, under all circumstances, was an honest mistake of fact without fault on the part of the defendant, which in ' law excused him.

For the foregoing reasons I think the judgment of the special sessions was wrong, and should be vacated and set aside, and the defendant granted a new trial; and it is so ordered.  