
    
      People of Puerto Rico, Plaintiff and Appellee, v. Emilio Cotis, Defendant and Appellant.
    
      No. 5875.
    
    Argued May 5, 1936.
    Decided July 28, 1936.
    
      
      Miguel A. García Méndez for appellant. B. A. Gómez, Prosecuting' Attorney, and Luis Janer, Assistant Prosecuting Attorney, for appellee.
   Mr. Chiep Justice Del Toro

delivered the opinion of the Court.

The District Attorney of Mayagiiez accused Emilio Cotis and Juan Casiano of the crime of adulterating milk, committed in San Germán on November 27, 1934, in transporting: adulterated cow’s milk for human consumption.

The defendant Cotis pleaded not guilty and the trial having been held, the court on March 7, 1935, sentenced him to pay a fine of $25. He appealed to this Court and assigns as errors the dismissal of his motion for nonsuit and the pronouncement of the judgment of conviction without evidence to uphold it and contrary to the decisions of this Supreme Court.

At the beginning of the trial both parties stipulated that if the chemist of the Board of Health were called, “he would testify that a sample of milk that was sent to him in the month of November or December 1934, marked with the initials A. B. No. 47, was examined by him, and that the same was found to be adulterated with 46 per cent of water artificially added.”

The testimony of Arturo Benavent was then heard. Examined by the District Attorney he answered that on November '27, 1934, he was engaged in taking samples of milk as employee of the Department of Health in the Municipality of San Herman, and that he went to the milk-stall of Con-chita Montalvo and saw the defendant arrive from 7 to 8 at night in the delivery wagon of the Bine Bibbon Dairies; that he stopped the defendant while the latter was unloading the milk cans from the wagon and told him that he needed some samples of the milk to send them to the Department of Health. With defendant’s consent witness opened the cans MJid took three samples of milk, one of which was delivered :'to the defendant, another was sent to the Department and ithe third sample was kept in his office, all being marked A. B. No. 47.

Cross-examined by counsel for the defendant, the witness answered that the defendant drove the milk wagon and that he did not remember whether anyone else was in charge of the transportation; that he stopped in front of the milk-stall; that the milk cans were absolutely locked and sealed and that the witness does not know who locked them; that they had the customary tag of the dairy from where they were brought; that he was absolutely certain that no one had opened the cans after they were locked and sealed; that the milk cans were brought from Antonio Olivieri’s dairy.

Asked whether he knew that Juan Casiano had been accused jointly with Ortiz, the district attorney intervened and admitted that Casiano was traveling in the bus, that he was accused and convicted of the same crime.

Upon being further- questioned by the district attorney, the witness testified that the wagon stopped on Park Street, in San Germán, in front of the milk-stall of Conchita Mon-talvo, that the milk cans were unloaded and taken into the stall, and the samples were taken within the stall.

That was all the evidence for the prosecution. Alleging ■that the same was insufficient to find him guilty, the defendant moved for his discharge and the conrt decided his petition as follows:

“Court: Under the circumstances there is no other alternative for the court hut to deny this motion. The crime of adulteration of milk is like the majority of those crimes wherein no intention is needed. What is required is the fact. The law is hard but is the lcjw. There is no doubt, or rather, there has been sufficient evidence for the court to believe that there is a case against the defendant. It has been shown that he has transported adulterated milk; so that the fact that there has been another person who has pleaded guilty of adulterating the milk does not exempt this defendant from liability. This man transported adulterated milk; the same was carried from one place to another. . . .
“Attorney Baigés: But it has not been proved that the milk was to be used for human consumption.
“Court: There has been evidence here to show that the milk wagon stopped in front of the stall and that the cans were unloaded from the wagon and taken into the stall. It is enough that the milk be found at a public stall to conclude that it will be used for human consumption. ’ ’

The defendant took the stand in his own behalf. He testified that he was the chauffeur of a mill? wagon belonging to the Blue Ribbons Dailies which carried milk from Guá-nica to Mayagiiez, taking it from several dairies in milk cans locked and sealed with the name of the dairy; that the cans were put in the wagon by an employee of the dairy; that he had no authority to investigate the contents of the milk cans; that the offices of the Blue Ribbon Dairies are in Mayagiiez and that the milk cans examined were delivered to him sealed and locked at the dairy of Antonio Olivieri, situated in the Ward Palmarejo of Lajas.

The evidence for the defendant ended with the production of an affidavit of Juan Casiano, admitted without any objection on the part of the district attorney, wherein deponent stated that it was he who through inadvertence caused the adulteration of the mill?: carried by Emilio Cotis in the present ease.

The appellant maintains in Ms brief that as it has not been shown that he committed the crime charged in any of its modalities, the judgment of conviction entered against him should be reversed and his discharge ordered. He bases his contention largely on the decisions of this Court in People v. Cedrés, 41 P.R.R. 112 and People v. Vidal, 44 P.R.R. 502.

The defendant Cotis was charged with transporting adulterated milk for human consumption, a fact which constituted a crime under the lav/. It was unnecessary to show that he made the adulteration.

And the circumstance that the other person who was jointly accused with him of the transportation pleaded guilty to the adulteration, does not exempt him from liability for carrying the mills. This is plain.

The evidence of transportation is conclusive. This fact is admitted by the defendant and appellant himself. That the milk was to be used for human consumption is presumed from the fact that the milk cans containing the same were unloaded at the milk-stall of Mrs. Montalvo in San Germán. People v. Bauzá, 34 P.R.R. 319. People v. Pérez, 23 P.R.R. 871.

It is maintained that the defendant and appellant knew nothing and could know nothing as the milk cans were locked and sealed and to that end the cases of Cedrés, supra, and Vidal, supra are cited.

In the first of said cases stress was laid on the fact that Cedrés was not transporting the milk from the several dairies to be used for human consumption “but to be delivered to the person to whom it was consigned, who could do with it as he pleased.” Here the defendant Cotis not only transported the milk but also left it at a milk-stall dedicated to the sale of milk for human consumption. In the case of Vidal, supra, in the syllabus it was held that “Where a person purchases adulterated milk and transports it from a farm to the shop of his employer, and it does not appear that while transporting it he had the intention -of causing the milk to be used for human consumption, lie is not guilty of the crime of transporting adulterated milk to be used for human consumption.” (Italics ours.) There the situation was different.

■ Defendant’s testimony instead of improving his situation, made it worse. The district attorney maintains in his brief that what it shows is that the defendant acted beyond the scope of his employment by becoming an accessory to Ca-siano in the sale made by the latter at the milk-stand in San G-ermán. Perhaps he is right.

The appeal will be denied and the judgment appealed from affirmed.

Mr. Justice Córdova Dávila took no part in the decision of this case.  