
    State of Ohio v. Kelly.
    
      Adulteration of food and drugs — Defense of ignorance by vendor— Act of March SO, 1884 {81 Ohio Laws, 6y).
    
    1. An aflicl avit to charge a violation of the act of March 20, 1884 (sec. 8805, Giauque’s Revised Statutes), “to provide against the adulteration of food and drugs,” need not charge that an adulterated article of food is sold to be used as human food.
    2. In a prosecution under said act it is not a defense that the accused is ignorant of the adulteration of the article which he sells or offers for sale.
    (Decided February 25, 1896.)
    On exceptions of the prosecuting attorney to the decisions of the common pleas court of Franklin county.
    Dennis Kelly was tried and convicted in a justice’s court of Franklin county, for an alleged violation of the act of March 20, 1884, to provide against the adulteration of food and drugs. Kelly having been adjudged to pay a fine of $100, filed his petition in error in the common pleas court where the judgment was reversed, for the following reasons:
    1. “The affidavit upon which said action was predicated is defective in this, that it fails to allege that said article of food so sold by the defendant below, was sold to the purchaser thereof to be used as human food.”
    2. “That the justice erred in refusing to give to the jury the following instruction requested by the defendant: ‘While it is not necessary to charge knowledge in the affidavit, want of knowledge and absence of intent is a valid defense. You will carefully weigh the evidence of all the witnesses, and if the evidence discloses that the defendant bought the molasses, he is here charged with selling, for pure New Orleans molasses and honestly believed it tp be such, that still believing it to be pure, he sold it as such without intent to deceive the purchaser thereof as to its true character, you must acquit the prisoner.’ ”
    The substantial part of the affidavit is that Kelly “did unlawfully offer for sale and sell to one D. J. Minton, a quantity, to wit, a package of a certain article of human food, namely, New Orleans molasses, that then and there said food was adulterated by having mixed therewith glucose, whereby the quality, strength and purity thereof was lowered and depreciated; that then and there said package of food was not labeled as a mixture or compound, nor labeled with the name and per cent, of each ingredient therein.”
    
      Joseph H. Dyer, prosecuting attorney, Charles Case, W. T. Clark and S. C. Jones, for plaintiff in error.
    The common pleas court reversed the judgment of the lower court upon the sole ground that the affidavit upon which the prosecution was based, was fatally defective in the absence of an averment that the article was sold for and to be used as human food. We do not take this view of the law of the case. Goodrich v. People, 19 N. Y., 574.
    That the sale was for any other purpose or for some purpose, so as to take it out of the operation of the statute, is, as it appears to us, like insanity, alibi or in a case for assault that the party acted in self-defense, purely a matter of defense. Bond’s case, 23 Ohio St., 349; Brotherton’s case, 75 N. Y., 162-3.
    This construction of the statute is but just to the state and no hardship to the accused, as it only calls upon him for proof of facts to rebut what is fairly presumable from the sale and of which he may reasonably be supposed to have the best knowledge; and it also leaves open the door to Legitimate enforcement of the law.
    The following is the language of the statute, in part: “That no person shall within this state manufacture for sale, offer for sale, or sell any drug or article of food whicliis adulterated within the meaning of this act.” The sale of any article of (and not for) food, is the language of the statute. 81 Ohio Law, 67.
    The rule in criminal pleading is universal, that the state is not required to aver in its information a matter which is not contained in the statute, nor prove a fact which it is not required to aver; and, while the defendant is entitled to a substantial description of his offense, this is complied with very generally when the offense is averred in the language of the statute. Poage v. The State, 3 Ohio St., 230; Lougee v. The State, 11 Ohio, 69; Davis v. The State, 32 Ohio St., 24; Altschul v. The State, 8 C. C. Rep., 215; U. S. v. Simmons, 96 U. S., 360; U. S. v. Gooding, 12 Wheat., 460. In this case the averment that the article sold was an article of human food, adulterated (in the language of the statute without any qualifications as for what purpose or use), ought to be regarded as sufficiently implying that it was for such use, and thus throw upon the defendant no hardship, but the simple burden of showing that he was not dealing in the article for such use or purpose, as “The means of such knowledge are thoroughly within his own cognizance and not that of the state.” 8 C. C. Rep., 216; 1 Greenleaf on Evidence, section 79 and cases cited.
    
      As a rule for regulating the time and mode of producing evidence (not, it will be remembered, for the purpose of adding any presumption to affect the merits), it is held that, when a fact is peculiarly within the knowledge of the party, the burden is on him to prove such fact, whether the proposition is affirmative or negative. Apoth. Co. v. Bentley, R. & M., 159; Great West. R. R. v. Bacon, 30 Ill., 347 State v. McGlynn, 34 N. H., 422; State v. Keggon, 55 N. H., 19; Toler v. State, 16 Ohio St., 583; State v. Josey, 64 N. C., 56; Huggins v. Ward, 21 W. R., 914; 3 F. and F., 109; Commonwealth v. Garber, 132 Mass., 12; State v. Marshall, 64 N. H. , 551.
    It is not required that the rule of pleadings should furnish a shield from punishment. There is here such a description of an offense that the defendant will know what he is to answer; that, when tried the jury will be warranted in finding a verdict, and, if found guilty, the court will not be misled in inflicting the punishment. State v. Follett, 6 N. H., 53.
    This form of affidavit has been long in use in states where these food laws have been enforced. The statutes of the several states are very similarly constructed.
    Substance of affidavits set out in Marshall’s case, 64 N. H., 551; Evans’ case, 132 Mass., 11; Nichols’ case, 10 Allen, 199; Farren’s case. 9 Allen, 489; Addington’s case, 77 Mo., 110; Smith’s case, 10 R. I. , 258; Kibler’s case, 106 N. Y., 321.
    Brief of W. T. Glarh.
    
    But that a guilty intent is not necessary in all cases is shown by the fact that in a large class of cases every day becoming more important — that of negligence — the nature of the offense excludes intention, either good or evil. The wrong in the first class of cases consists in intending evil; the wrong-in the second class from not intending at all. A distinct class of eases have .come up, in which the unlawful act is done intentionally, but in ignorance that it is unlawful. This ignorance is of two kinds: First, ignorance of law; and, second, ignorance of fact. That ignorance of law. is not a defense is generally conceded. U. S. v. Anthony, 11 Blachf., 200; 122 Mass., 40 ; 9 Pa. St., 312.
    Ignorance of fact, however, presents questions far more intricate, and, as to this defense, we may lay down the following propositions:
    
      First — When to an offense knowledge of certain facts is essential, then ignorance of these facts is a defense.
    
      Seconds — When a statute makes an act indictable, irrespective of guilty knowledge, then ignorance of fact is no defense. Greenleaf on Evidence, 3d vol., section 21; Stevens’ Digest of Criminal Law, 28.
    It is easy to see that to require an affirmative proof on the part of the state, that the accused had actual knowledge of the adulteration, would put an end to many meritorious prosecutions. The cases even warrant the holding that the accused must know at his peril, and that such doctrine is necessary to protect the public. Barnes v. The State, 19 Conn., 397; Commonwealth v. Nichols, 10 Allen, 199; Commonwealth v. Boynton, 2 Allen, 16; State v. Smith, 10 R. I., 258; State v. Hartfield, 24 Wis., 60; Commonwealth v. Hallett, 103 Mass., 452; Regina v. Woodruff, 15 M. & W., 404; 11 Mass., 264.
    Analogous cases have arisen under statute making it indictable to abduct, seduce or violate girls under a specified age Here, also, it is no defense that the defendant mistook the girl’s age. R. v. Rollins, 1 C. & R., 456; State v. Ruhl, 8 Iowa, 447; State v. Newton, 44 Iowa, 45; Beckham v. Nackc, 56 Mo., 546.
    In other lines of prosecution, under statutes making acts indictable irrespective of intent,-similar conclusions have been reached. Hudson v. McRae, 4 B. & S., 585 ; People v. Reel, 47 Barber, 235; Commonwealth v. Vialle, 2 Allen, 512; 48 Ala., 199; Commonwealth v. Raymond, 97 Mass., 567. Nor to an indictment for carrying an illegal number of passengers, that the defense did not know that there was an excess. State v. Balt. Steam. Co., 13 Md., 181; Duncan v. State, 7 Hump., 148. Nor to an indictment for selling naphtha, that the defendant did not know that the oil was naphtha. Commonwealth v. Wentworth, 118 Mass., 441. Nor to an indictment for illegally usurping an office, that the defendant honestly believed that he was honestly elected to the office. State v. Hallett, 8 Ala., 159; McGuire v. State, 7 Humph., 54; State v. Hart, 6 Jones, N. C., 389. With these rulings may be elassed the well-known common law principle that it is no defense to an indictment for a libel that the defendant was ignorant of the contents of the libel. Curtiss v. Mussey, 6 Gray, 261; People v. Wilson, 64 Ill., 195. Or that his motives were scientific or philanthropic. R. v. Hicklin, L. R., 3 Q. B., 360.
    The above proposition is supported by Gardner v. The People, 62 N. Y., 299; People v. Jones, 54 Barb,, N.Y., 311; People v. Brooke, 1 Denman, 457; Regina v. Sleep, 8 Cox C. C., 41; U. S. v. Conner, 3 McLean U. S., 575; Rex v. Sainsbury, 4 T. R., 451; Rider v. Wood, 2 El. & E., 338; 4 T.& R., 257; R. v. Jones, Stra., 1146; R. v. Woodfall, 5 Burr., 2667; 5 H. & N., 84; 14 C. & B., 388; Regina v. Thomas, 32 L. J. M. C., 25; State v. Halstead, 10 Vroom., 413; Commonwealth v. Wentworth, 118 Mass., 441; Harrigan v. Newell, 110 Mass., 470 ; 97 Mass., 567; May Criminal Law, section 5.
    In the British Tribunal, as long ago as 1844, this question arose in the case of the Crown v. Robbins, under a statute punishing the unlawful taking of an unmarried female, under the age of sixteen years of age, out of the possession or against the will of the person having lawful care or charge of her. I. C. & R., 452; case of Regina v. Olifer, 12 Cox, 28; case of Regina v. Brett, 12 H., 231. Inallof which cases it was held by the presiding judges that the ignorance of the fact that the girl was under the specified age was no’ defense; and at last, in 1875, in the case of Regina v. Prince, reported in L. & R., 2 C. & C., report 151, fifteen out of sixteen judges affirmed the same doctrine. In the case of Plumbley v. Commonwealth, decided December 10, 1894, by the Supreme Court of the United States, Judge Harlan presiding, in speaking of a statute similar in its terms, says that the act forbids the practice of selling adulterated food, and seeks to suppress fraud and promote fair dealing.
    Ignorance or mistake of facts will, as a rule, exempt one from criminal responsibility, except—
    
      {a) Where the intention with which he acts is unlawful;
    (b) Where the ignorance or mistake is voluntary, or the result of negligence;
    (c) Where a crime is so defined by statute that some particular independent fact must coexist, and it was the intention of the legislature that one doing- the forbidden act should do it at his peril. In such case ignorance of the existence of such fact is no excuse. Examples of this are in the cases of illegal sales of adulterated food or liquor, or intoxicating liquor, most of the courts holding that it is no defense for the seller to say that he did not know of the adulteration or intoxicating propertiesof the food or liquor. Com. v. Boynton, 2 Allen, Mass., 160; Com. v. Waite, 11 Allen, Mass., 264; Com. v. Goodman, 97 Mass., 117; Com. v. Smith, 103 Mass., 444; People v. Ziegler, 6 Parker, Crim. R. (N. Y.), 355; State v. Smith, 10 R. I., 258; People v. Kibler, 103 N. Y., 321; 12 N. E. Rep., 795; King v. State, 16 Miss., 502; 6 South Rep., 188; People v. Eddy (Sup.), 12 N. Y. Supp., 628; Com. v. O'Kean, 152 Mass., 584; 26 N. E. Rep., 97.
    
      Thomas Ewing Steele and T. E. Poioell, for defendant in error.
    Brief of Thomas Ewing Steele.
    
    In a criminal prosecution under the act of March 20, 1884, 81 O. L., 67, and kindred sections, the defendant may set up in defense and prove abscence of knowledge and presence of good faith and an honest belief on his part, not superinduced by his own fraud or negligence, that the article sold was unadulterated. Anderson v. State, 7 Ohio, Pt. 2, 250; Birney's case, 8 Ohio, 230; Miller & Gibson v. State, 3 Ohio St., 475; Aultfather v. State, 4 Ohio St., 467; Crabtree v. State, 30 Ohio St., 382; Farrell v. State, 32 Ohio St., 456. It cannot be inferred that an indictment which simply follows the language of the statute is sufficient. Mann v. State, 47 Ohio St., 562; Hager v. State, 35 Ohio St., 268. Nor can merit be found in the claim that the omission of scienter from the statute, allows a man to be convicted without according him his common law right to plead ignorantia facti. Bishop's New 
      
      Grim. Law, section 2916. In some of these pure food statutes, the word “knowledge” vestibules a definition of the offense, and in others it does not. An analysis of the various statutes will show that the use or omission of the scienter had been entirely arbitrary and inadvertent.
    Section 7091, Revised Statutes, expressly forbids the adulteration of any domestic wines, by mixing therein any drugs, chemicals^ whisky or any liquors, by any person “knowing the same to be adulterated.”
    A review of these statutes will disclose that the word “knowingly” has been inserted or omitted by the merest chance or accident.
    We therefore conclude that the question as to whether the plaintiff in error’s good faith and ignorance of the fact were material, cannot be determined by a mere inspection of the statute under which he was convicted.
    So, too, we are not impressed with the analogy between the case at bar and those decisions where a man has been held guilty of a higher grade of crime than he may have intended to commit. A man guilty of larceny will hardly escape the penitentiary by claiming not to have known the true value of the stolen goods, nor could one guilty of assault upon a female child, plead for a lighter penalty on the ground that he misjudged her age; but one lawfully engaged in the liquor traffic, may plead as a defense to an indictment for selling to a minor, that he did not know the lad’s minority, but honestly believed him to be sui juris. Miller & Gibson v. The State, 3 O. S., 475.
    The distinction is obvious and based on a familiar principle^ that the crucical test must always be whether the “mind is criminal.”
    
      One lawfully engaged in the drug or grocery business, indicted in a local option township for selling intoxicating liquors, might show in good faith he believed the liquors sold to be non-intoxicating. (32 O. S., 456); why, therefore, may not a merchant lawfully engaged in the wholesale grocery business, if arraigned for selling adulterated molasses, in like manner establish that he honestly believed the same to be unadulterated ?
    It may be true that some courts, notably in Massachusetts, have gone far to maintain the position urged by the state, but such decisions are in sharp conflict with the adjudication of this court. Compare Commonwealth v. Boynton, 2d Allen, 160, with Farrell v. State, 32 O. S., 456, and Commonwealth v. Evans, 98 Mass., 6, with Miller & Gibson v. State, 3 O. S., 475.
    We insist (1) that it is the settled doctrine in Ohio that absence of knowledge and intention, coupled with presence of good faith, is a competent defense to a prosecution for any misdemeanor; (2) that the misdemeanors created by the act of March, 1884, do not so differentiate from any others as to qualify this doctrine; and (3) that there has been no discovery in the science of the law, nor has any public exigency arisen to require this court to reverse its unbroken line of decisions upon this point. It is settled law in Ohio that want of knowledge is a proper defense. Birney v. State, 8 Ohio, part 1, 230; Miller & Gibson v. State, 3 Ohio St., 475; Aultfather v. State, 4 Ohio St., 467; Farrell v. State, 32 Ohio St., 456.
    These decisions all construe statutes containing no scienter, and they have been faithfully followed by inferior courts throughout the state, the trial judge among the rest.
    
      A review of the authorities will sufficiently show that this court has clung to the fundamental principles of common law. People v. Fulle, 12 Abb., N. C., 196; Fowler v. Padgett, 7 T. R., 509; Taylor v. Newman, 4 B. & S., 89; 32 L. J. (M. C.), 186; Regina v. Sleep, 8 Cox., Cr. C.
    The same doctrine has been broadly laid down by Justice Hill in the earlier case of Regina v. Cohen, 8 Cox, Cr. Cases, 41; Myers v. State, 1 Conn., 503; Regina v. Wagstaff, 10 Cox, 530; Stern v. State, 52 Ga., 229; Commonwealth v. Power, 41 Am. Dec., 465; Regina v. Hibbard, 11 Cox, 246 State v. Smith, 18 N. H., 91; State v. Holmes, 17 Mo., 379; Regina v. Reed, 1 C. & M., 306.
    The prevailing doctrine of the common law is found in Regina v. Sleep, and has never, so far as we know, been overruled. Many other eases mig-ht be cited, but they would only be cumulative. The entire subject is thoroughly discussed by Mr. Lawson in his volume on Criminal Defenses, page 465 et seq. Bishop’s New Crim. Law, section 303a, and extract from note thereto, par. 19-22, inclusive.
    The affidavit is faulty in failing to charge that the molasses was sold for and to be used as human food.
    The common pleas court discharged the accused because the affidavit did not state any offense under the laws of Ohio; it did not allege that the said molasses was sold for and to be used as human food.
    It is clear that the act of March, 1884, was enacted solely to protect the people of the state against the use of impure and adulterated food, and that no one would violate the law by selling any food, except as such. Bishop’s New Crim. Law, 491. Sec. 2, act March, 1884, 81 O. L., 67.
    This proposition is indisputable. The question remains whether the state must aver whether the article was sold for food, or, -averring the naked sale, compel the defendant to set up in defense its sale for some other purpose. People v. Parker, 38 N. Y., 85; Goodrich v. People, 19 N. Y., 579; Schmidt v. State, 78 Indiana, p. 41.
    
      Rex v. Dixon, 3 Maul and Sel., 11 (affirmed 4 Camp., 12), is not in conflict with the doctrine we are contending for. Queen v. Crawley, 3 Fost and F., 109.
    We are not insisting that the affidavit should negative the claim that the sample was sold for analysis; that contention would receive no encouragement under the ruling in Billigheimer v. The State, 32 Ohio St., 435. We do claim, however, that no case can be found where a man was convicted for selling any adulterated article of food unless it was sold for and to be used as human food.
    The fact that the article was sold as food is an essential part of the charge; it is a part of the substance.
   Shauck, J.

Thefirst section of the act of March 20,1884 (section 8805, 1, Revised Statutes), provides “that no person shall within this state manufacture for sale, offer for sale, or sell any drug or article of food which is adulterated, within the meaning of this act.” Other provisions of the statute are devoted to definition of the terms used in the first section, and to prescribing penalties for the violation of the act. It is not doubted that molasses to which glucose has been added is an article of adulterated food ■ within the meaning of the statute.

The act does not in terms require, to constitute an offense against its provisions, that the adulterated article of food-shall be sold to be used by the purchaser as human food. Nor does it in terms require, as an element of the offense, knowledge of the fact that the article is adulterated, or provide that a 'want of such knowledge, shall constitute a defense. Both conclusions stated in. the decision of the court of common pleas, are, therefore, wrong unless they are justifiable inferences from the purpose and indicated policy of the act.

The act is not a provision for the punishment of those who sell adulterated food, or drugs, because of any supposed turpitude prompting such sales or indicated by them. Its purpose is indicated by its title. It is “an act to provide against the adulteration of food and drugs.” It is a plan devised by the general assembly to protect the public against the hurtful consequences of the sales of adulterated food and drugs, those consequences being in no degree increased by the vendor’s knowledge, or diminished by his ignorance, .of the adulteration of the articles which he offers for sale. The provisions of the act are appropriate to the purpose indicated by its title. It would have been inconsistent with that purpose to provide for the trial of such immaterial issues as the object of the vendor in making a sale or of the extent of his knowledge touching the quality of the article sold. Those who produce the adulterated articles whose sale is forbidden may live without the state. Purpose and knowledge, except when they are indicated by the character of the forbidden act, are, in most cases, insusceptible of proof. If this statute had imposed upon the state the burden of proving the purpose of the vendor in selling an article of food or his knowledge of its adulteration, it would thereby have defeated its declared purpose. Since it is the duty of courts to so construe doubtful statutes as to give effect to the purpose of the legislature, they cannot in case of a statute whose provisions are unambiguous and whose validity is clear, defeat its purpose by construction.

The correct view of statutes of this general nature is stated by the supreme court of Massachusetts in Commonwealth v. Murphy, 42 N. E. R., .504: “Considering the nature of the offense, the purpose to be accomplished, the practical methods available for the enforcement of the law, and such other matters as throw light upon the meaning of the language, the question in interpreting a criminal statute is whether the intention of the legislature was to make knowledge of the facts an essential element of the offense, or to put upon everyone the burden of finding out whether his contemplated act is prohibited, and of refraining from it if it is. ’ ’

In Commonwealth v. Farren, 9 Allen, 489, in construing a statute which provides that “whoever sells or keeps or offers for sale adulterated milk, or milk to which water or any foreign substance has been added” shall be punished as provided, it was held that it is not necessary either to allege or prove that the accused knew that the milk he offered for sale was adulterated. With respect to a similar statute the same conclusion was reached in State v. Smith, 10 R. I., 258. If knowledge of the adulteration were an element of the offense, it would be incumbent upon the state to establish it; but since it is not, the 'defendant could derive no advantage from any evidence tending to show the absence of such knowledge.

With respect to the absence of the allegation that the adulterated article of food “was sold to be used as human food,” it is sufficient that the statute forbids the sale of such article without any requirement as to the purpose, assuming that it is to be used for that purpose to which it is appropriate. Goodrich v. People, 3 Parker, Crim. R., 622; Davis v. The State, 32 Ohio St., 24.

In the enactment of this statute it was the evident purpose of the general assembly to protect • the public against the harmful consequences of the sales of adulterated food and drugs, and, to the end that its purpose might not be defeated, to 'require the seller at his peril to know that the article which he offers for sale is not adulterated, or to demand of those from whom he purchases indemnity against the penalties that may be imposed upon him because of their concealment of the adulteration of the articles.

Exceptions sustained.  