
    Goodrich v. The People.
    An indictment for selling unwholesome provisions sufficiently avers a sale for consumption as food for man by stating that the prisoner sold to divers citizens beef as wholesome food, well knowing the same to be diseased, unwholesome and not fit to be eaten.
    The offence is made out by proof of the sale of flesh of an animal which the seller knew to have a disease, the nature and tendency of which are to taint and affect the flesh of the animal in any degree, although the taint was impel ceptible to the senses, and the eating of the flesh produced no apparent injury.
    Guilty knowledge that the disease, e. g., a running abscess in the head of a cow, which had been apparent and increasing for some months, would render her flesh unwholesome, may be inferred from circumstances without proving the defendant a person of skill.
    Writ of error to the Supreme Court. The plaintiff in error was convicted, at the General Sessions of Tioga, of selling unwholesome provisions. The indictment charged that he knowingly, deceitfully, &c., sold to divers citizens, to the jurors unknown, five hundred pounds of beef as good and wholesome beef and food, whereas, in truth and fact, the said beef was not good and wholesome beef fit for food, but on the contrary thereof was unwholesome and diseased and not fit to be eaten by man; he the said C., B. Gr. then and there, well knowing the said beef to be diseased and unwholesome and not fit to be eaten as aforesaid. The defendant objected to the indictment that there was no allegation that the beef was sold for food. The objection was overruled under exception, and the defendant subsequently moved in arrest of judgment, for the same reason, and took an exception to the denial of his motion.
    The evidence was that the defendant, a farmer, bought a cow which for several months had a sore upon and about one of her eyes—a considerable portion of her face was swollen, and the sore discharged an offensive matter which sometimes ran into her feed and she then refused to eat it. There was some evidence that the smell of the sore was perceptible to one passing the cow, and that after she was killed and while the butcher was skinning her the smell was very disagreeable. A physician who heard the evidence, and was himself examined as a witness, expressed the opinion that the disease was an abscess extending to the bone, and that such a sore in the head would produce an irritating fever affecting the whole animal more than if located in the extremities or than if the disease was located in the soft parts. There was other evidence tending to show that the cow’s general health had been affected, and that it was shown in the difficulty of fattening her, the appearance of her hair, &c. The defendant took exceptions to the charge, which are sufficiently stated in the following opinion. The defendant having been convicted and sentenced, brought error to the Supreme Court where the judgment was affirmed at a general term in the fourth district, and he then sued out a writ of error from this court.
    The following opinions were delivered in the Supreme Court:
    By the Court, Balcom, J. Blackstone says: “The selling of unwholesome provisions” is an offence against public health. (4 Bl/c. Com,. 162.) It is laid down by Russell that “the public health may be injured by selling unwholesome food.” (1 Buss, on Crimes, 115.) This author again mentions “the selling of unwholesome provisions,” as an indictable offence, and remarks, “it is said, more largely, that the giving of any person unwholesome victuals, not fit for man to eat lucri causa, or from malice and deceit, is undoubtedly, in itself, an indictable of-fence.” (2 Russ, on Crimes, 286). The same principle is stated by Roscoe. (Roscoe’s Or. Ev., ithAm. Ed., from 3d London Ed., 879). And he further says: “ It is a nuisance for a common dealer in provisions to sell unwholesome food, or to mix noxious ingredients in the provisions which he sells.” (Id., 797). Wharton enumerates “the selling of unwholesome provisions” among misdemeanors. (Wharton’s Am. Grim. Law, 86.) Barbour remarks that “ selling unwholesome provisions is a misdemeanor at common law.” (Barbour’s Grim. Law, 228).
    The indictment in Treve’s case charged the sale of five hundred pounds weight of unwholesome bread “to be eaten as food.” (2 Russ, on Or., 286; 2 Chit. Crim.L., 558). In Dixon’s case the allegation in the indictment was that the defendant, a baker, supplied to the Royal Military Asylum, as and for good wholesome household bread, divers loaves mixed with certain noxious ingredients, not fit for the food of man, which he well knew so to be, at the time he so supplied them. The defendant was convicted, and his conviction was affirmed in banc. (Rex. v. Dixon, 4 Campbell, 12; 2 Russ, on Or., 287; 2 Chit. Or. Law, 559). Indictments have been held good which stated the sale and delivery of unwholesome bread to 0. D. for the use and supply of himself and others. (2 Chit Grim. Law, 556, <£c.) In one case the objection was taken to the indictment, on the motion in arrest of judgment, that it did .not specify that the unwholesome loaves of bread were delivered “to be aeten,” and the court held that the allegation that the loaves were delivered for the use and supply of children, must mean that they were delivered for their eating. (Russ, on Or., 116.)
    The statement in the indictment in this case that the defendant sold the beef to divers citizens “as good and wholesome beef and food,” means that he sold it to such citizens to be eaten by them.
    It would be absurd to hold that the language of the indictment authorizes the conclusion that such citizens may have purchased the beef for their dogs, or for any purpose except for themselves or families to eat; and no inference can be spelled out of the indictment that the defendant intended to sell the beef to be applied to any use by the purchasers other than as food for themselves or their families. The evil intent of the defendant in making the sale, and the time and place that he made it are sufficiently averred in the indictment. The form of the indictment might be improved, but still it is sufficient to uphold the conviction on it. It was not defective because it omitted to name the persons to whom the defendant sold the beef, for they were unknown to the jurors. (2 Chit. Or. L., 558.) And it was not necessary to set forth what rendered the beef unwholesome, or to state that the defendant intended to injure the health of the persons who ate it, or that it did injure their health. (2 Mast’s P. C., 822; 8 M. & &, 16).
    What the defendant’s wife said to him .about the unwholesomeness of the meat did not tend to establish the fact that it was unwholesome, but it’was competent to show that the defendant’s attention was called to the condition of the meat before he sold it. It proved very little any way, but it was, nevertheless, competent evidence on the question whether the defendant knew or believed the meat was bad when he sold it.
    The questions put to the two physicians were unobjectionable. It was proper for the people to prove that the eating of • diseased meat does not always cause apparent sickness. It was also proper for them to give their opinions from the descriptions which other witnesses gave of the sore on the cow’s head, as to the nature of the disease which the cow had; and that it would cause fever, and that the flesh of animals laboring under a fever is unwholesome.
    The charge of the court to the jury was substantially correct. I am aware that the broad proposition is asserted by Wharton, that “to support an indictment for knowingly selling unwholesome provisions, the provisions sold must be in such a state as that, if eaten, they would by their noxious, unwholesome and deleterious qualities, have affected the health of those who were to have consumed them. (Wharton's Am. Gr. Law, 701.) And I shall not attempt to controvert this proposition. Eor does the charge of the court conflict with it. As I understand the evidence of the physicians, the eating of diseased meat, although it produces no obvious ill effects, does in reality injure the health of those who partake of it. The jury must have understood from the charge that they could not convict the defendant unless the meat was in such a state as to injuriously affect the health of those who ate it; but that it was not necessary to his conviction that the injury should be apparent to the senses, if the medical testimony established the fact that it did or would injure the health of those who partook of it, provided the defendant knew the cow was diseased from'which the- meat was taken. And this proposition is in harmony with that laid down by Wharton.
    Dealers in tainted provisions have no right to palm off their noxious articles until they have prostrated those who eat them, by actual sickness. The people must be protected against the sale of unwholesome provisions, by the punishment of persons who deal in them, although nobody be made apparently sick by eating them. The fact that nobody was apparently affected injuriously by eating the beef which the defendant sold, was strong evidence that it was wholesome, but it was not conclusive; and this court cannot say but that the jury gave due weight to it, in determining the case.
    The court did not err in refusing to adopt the three propositions which the defendant’s counsel requested should be stated to the jury as legal rules to govern them in determining the case. Eor was the court bound to mention them as pertinent suggestions in regard to the questions of fact in the case. The facts were probably discussed before the jury sufficiently by the defendant’s counsel; at least, such is the presumption. And the court did not err in the opinion that the charge given embraced the whole law applicable to the case. The fact that the cow was diseased, and that the defendant knew it, was undisputed. And the presumption is that no part of an animal that is rotten with disease in any place, is fit food for man to eat. The defendant sold the meat of the cow, after his wife had told him she would not like to cook it or eat it, and he took the risk upon himself that it was wholesome, when he disposed of it, knowing that it came from a diseased animal., (Rex. v. Dixon, 4 Camp., 12.)
    The defendant was rightfully convicted, and his conviction and sentence should be affirmed.
    Mascot, J., after stating his coneurrencein other respects, said:
    I am inclined to think, however, that the court below should have arrested the judgment, on the ground that the indictment fails to charge a criminal offence. The security of the accused requires precision and certainty in a criminal pleading, and will not admit anything to be taken by intendment. (6 Met-calf's Rep., 264.) As I understand the law, to constitute the criminal offence of selling unwholesome meat, it is necessary that it be sold for the food of man, or for his use as food, and it is necessary to aver in the indictment that the unwholesome article was sold for the food of man, or some other equivalent allegation, showing that it was for the use of a person or persons, to be eaten as food. The indictment in the case at bar does not contain such an allegation.. It alleges that the defendant did sell to divers citizens of the State, to the jurors unknown, divers, to wit: five hundred pounds of beef as good and wholesome beef and food, and then and there delivered the same, &c. This is not an averment that it was sold for the use of any of those divers citizens as food, or that it was designed, either by seller or buyer, that they should use it as food for themselves or in their families. (More v. Mead, 1 Demo's Rep., 387; 3 Maul, and Sel., 11; 2 East. P. 0., 821; 4 Camp. R., 11; 3 John., case 265, 267; State v. Norton, 2 Ire-dell's Rep., 40; 2 Hale's PI. G, 165.)
    
      N. W. Davis, for the plaintiff in error.
    
      Benjamin F. Tracy, Dist. Att'y, for the defendants in error.
   Comstock, J.

As the counsel for the plaintiff in error has insisted so we concede that an indictment for selling unwholesome provisions must charge that the article was sold for consumption as food for man. But the rule does not demand any precise form of words. It is enough if the language used fairly and intelligibly expresses that idea. In this case the indictment alleges that the plaintiff in error knowingly, &c., “sold to divers citizens five hundred pounds of beef as good and wholesome beef and food.”- It then charges that the beef was unwholesome and not fit to be eaten by man. It is a fair interpretation of this language to consider it as alleging that the beef was sold to the citizens to be eaten by them. We think the indictment was sufficient.

The jury were charged at the trial that if the animal was diseased, if the disease was known to the accused, and the nature and tendency of it were such as to taint and affe.ct the flesh of the entire animal in any degree, although the taint was imperceptible to the senses, and although the eating of the flesh produced no apparent injury to those who ate it, still as the probable consequence of eating the flesh of diseased animals might be highly injurious, the accused was guilty of the offence set out in the indictment. To this charge there was a general exception; and in the argument before us it has been insisted that the charge was erroneous because it left the jury at- liberty to find the defendant guilty if he knew of the disease although he might not know that the flesh of the animal was so affected thereby as to render it unfit for food. I do not think that the exception raised any such question. Looking at the form of the charge, I infer that the point intended to 'be reached by the exception was the one embraced in the words “although the taint be imperceptible to the senses, and although the eating of the flesh produced no apparent injury,” &c. In this particular the instruction was correct. The offence was the selling of diseased flesh for food, and in proving that such an offence had been committed it was not indispensable to show that the taint could be perceived by the senses, or that bad effects-had been developed in the use of the food.

The judge was requested to charge the jury in accordance with three propositions submitted by the counsel for the accused. He refused to do so and there was a general exception to that refusal. It is well settled that such an exception to be available must be good as to all the matter embraced within it. Looking at the three propositions, one of them asserted that in order to convict the defendant of the offence charged he must be shown to be a person of skill in .order to have a guilty knowledge that the disease which the animal had would render her flesh unwholesome for food. Without undertaking to say whether this might not be sound doctrine in some conceivable case, we are clearly of opinion that it was not in the case which was upon trial. Taking into view the facts as they were proved it certainly required no scientific skill in order to form a proper judgment as to the quality of the flesh which the defendant put into the market. The subject belonged to the common observation of mankind and not to experts alone. It is unnecessary to examine the other points embraced in the request to charge. The judge not being bound to instruct as requested in this particular the exception wholly falls to the ground.

All the judges concurring,

Judgment affirmed.  