
    People, Plaintiff and Appellee, v. Martínez, Defendant and Appellant.
    Appeal from the District Court' of Ponce in a Prosecution for Adulteration of Milk.
    No. 2061.
    Decided July 19, 1923.
    Public Health — Adulterated Milk — Offer of Sale — EVideuce.—In tMs ease the defendant was charged with offering for sale as pure cow’s milk diluted with water,. The evidence merely showed that the sample of milk was taken at 5: 30 a. m. from the cart in which the defendant was conveying the milk towards Ponce, hut before he had entered the city. Seld: That in the absence of evidence of any act on the part of the defendant in contemplation of an offer to sell the milk the evidence is not sufficient to sustain a conviction.
    The facts are stated in the opinion.
    
      Messrs. Martines Nadal, Tormes & Colón for the appellant.
    
      Mr. José E. Figueras, Fiseal} for the appellee.
   Mr. Justice Wole

delivered the opinion of the court.

Act No. 59 of March 10, 1910, Laws of that year, p. 163, provides that every person who ■ adulterates or dilutes milk with the intent to offer the same for sale, or cause (sic) or permit (sic) it to he offered for sale, and every person who sells, offers or keeps the same for sale, is guilty of a misdemeanor, etc. The adulteration or dilution with any idea of sale is amply covered. Likewise, the sale is punished without regard to the intent and, similarly, without regard to intent, the offering or keeping for sale. When adulterated milk is found it is possible for the complaining witness to file a complaint against an offender which will apprise him whether he is accused of adulterating with intention to sell or whether he is accused of selling, and the like, without any intent being an element of the offense. The courts in general and this court specially have sedulously followed the rule that when a man sells adulerated milk his intention is immaterial. Likewise, when he offers or keeps it for sale. But the right of a defendant to be charged clearly and to have the proof follow the charge still remains fundamental. Indeed, as the statute in such cases dispenses with a guilty intent, there is, if anything, less reason for dispensing with an equivalence between the charge and the proof. While in drawing complaints no very great particularity is required, yet some exposition there must be and the charge must be proved. In this case we need not consider the general question of the difference of averment required in infor-mations and complaints, because the fiscal of the District of Ponce began this case with an information in the District Court of Ponce.

The information set up that José Martínez, on the 30th of September, in Villa Street, Ponce, of that judicial district, illegally and voluntarily offered for sale as pure, milk that was adulterated with water. The adulteration with intent to sell or offer for sale was not charged against the defendant, perhaps because, as is the presumption, Martinez did not adulterate the milk. He was mot charged with selling or keeping for sale, as permitted by the wide range of the statute, but solely and exclusively of offering the adulterated milk for sale.

The evidence -was that Martinez was the owner of a cart with a license to sell milk therefrom. The inspector who. caused the arrest of the defendant testified that the defendant was entering Ponce on the western extension of Villa Street at-5:30 A. M., but that he had not reached the city of Ponce itself. The milk was clearly shown to be adulterated as charged. At the conclusion of the government’s case a motion for acquittal was overruled. Tlie defendant offered evidence tending to show that he bought milk from various persons on the road intended for sale in the city of Ponce, but that always before selling he took the milk to his house, subjected it to an examination with a lactometer and threw away the bad milk, and that he had no opportunity to do so in this case. ■

Of course, the district court had the right to disbelieve all the testimony of the defendant, but even so ■ we find no evidence of an offering for sale as charged. There was no offer for sale although there may have been an intent to offer the milk for sale. Perhaps if the charge had been that defendant was keeping the milk for sale the evidence would have tended to bear out the information, but even in that case the defendant would have been entitled to the presumption of innocence. "When a man is found on the road with newly purchased milk and he has taken mo step which shows that he was going to sell it, we doubt seriously whether a pñma facie case of keeping for sale has been shown. There • is clearly no offer to sell and in the absence of an offer to sell on the road there could be no' such offer until he reached Ponce.

The government cites the case of People v. Pérez, 23 P. R. R. 815, to support the conviction. That case is different in its facts. In that case the milk was shown to be in a stall which had been open all day, and we decided that there was a presumption that when a person had a stall he was offering the milk contained therein. That it was only a presumption and could be rebutted was shown by the citation of the case of People v. Andino, 21 P. R. R. 211, where the presumption was overcome, inasmuch as the milk was seized immediately on its arrival at the stall and before the defendant had had a chance, to examine it. Furthermore, the information in the Pérez Case charged'that defendant kept and offered the milk for sale.

A man who is on a suburban road carrying milk on a cart, although, licensed, cannot, be convicted of offering milk for sale without proof of some step looking towards a sale. If Martinez were shown to have made a single sale from his cart before the milk was seized, the case would fall within the principle of People v. Pérez, but in that case there was an accustomed spot of offering milk to the public kept open practically the whole day of the seizure.

Th,e judgment must be reversed and the prisoner discharged.

Reversed.

Chief Justice Del Toro and Justices Aldrey and Hutchi-son concurred.

Mr. Justice Franco Soto took no part in the decision of .this case.  