
    The People of the State of New York, Resp’ts, v. Bernard Bischoff, App’lt. Same v. Frederick Allen, app’lt.
    (Supreme Court, General Term, Second Department,
    
    
      Filed February 13, 1888.)
    
    Criminal law—Adulterated food—What it must contain—Laws 1881, chap. 407.
    Food to be adulterated, within the meaning of the law, must contain poison, and this fact must be proved to sustain the charge. Section 7, requiring labels, does not apply to the ordinary articles of food, provided they are not injurious to health. Barnard, P. J. dissenting.
    Appeal from a decision of the court of sessions of the •county of Kings, affirming the conviction of the appellants on a charge of violating the act entitled “An act to prevent "the adulteration of food or drugs,” being chapter 407 of the Laws of 1881.
    
      Boardman & Boardman, for app’lts; Baldwin F. Straus, for resp’t.
   Dykman, J.

The defendant Bischoff was prosecuted in the court of special sessions, in the city of Brooklyn, for a violation of the act to prevent the adulteration of food and drugs, passed May 28, 1881. The defendant Allen was also prosecuted in the same court upon a similar complaint, but he consented to abide by the evidence adduced against Bischoff.

_ The law of 1881 was amended in 1885, when it was considerably broadened in its scope, and again in 1886 slightly, but the amendments are not material to this case.

The charge against both these defendants was for exposing for sale and selling canned peas containing copper, but there was no allegation or charge in either complaint that the peas contained any added poisonous ingredient or any ingredient which might render them injurious to the health of a person who consumed them, nor that the copper they contained was poisonous.

When the defendant Bischoff was placed upon his trial his counsel moved for his discharge because the complaint failed to state that the goods sold by the defendant contained any added poisonous ingredient which rendered the article injurious to the health of the person consuming the same. The motion was denied and there was an exception.

Under the order of the court, the counsel for the proseen tian then elected to try the defendant under the first charge in the complaint, which charged a violation of the statute as already recited.

The trial then proceeded upon the same theory as the •complaint. The prosecution proved a sale by the defendant of a can of peas containing copper, and upon that testimony the defendant was convicted. There was a motion to dismiss because no offense had been established, which was denied, and the defendant excepted.

In its application to this case the statute in question is substantially this: No person within this state shall sell any article of food which is adulterated, and an article of food shall be deemed to be adulterated, within the meaning of. this law, if it coritain any added poisonous ingredient,, or any ingredient which may render such article injurious to the health of a person consuming it.

It is, therefore, no offense against this statute to sell canned peas unless they contain poison, and that essential element of the crime is omitted from the complaint and the proof.

The only issue upon the trial was whether the defendant sold canned peas containing copper, and the prosecution claimed the conviction of the defendant upon that proof alone ; but we cannot yield assent to that contention.

The peas sold by the defendant were not adulterated, within the meaning of the law, unless they contained poison, and that was not even charged. Neither can we assume without proof that the copper contained in the peas sold was poison, in the face of the proof introduced upon the trial by the prosecution, of the certificate of the state board of health .permitting the sale of canned peas in the preparation of which copper has been used.

What the state board of health has done, under its authority, to relax the rigor of this law is quite unimportant, for .the prosecution elected to try the defendant under that portion of the complaint which charged a violation of the statute only.

Neither is there any question in this case respecting labels. By section seven of the law, its provisions do not apply to ordinary articles of food, provided the same are not-injurious to health, and the articles are distinctly labeled as a mixture, stating the components of such mixture.

The simple effect, therefore, of the absence of a label was-to place the sale under the provisions of the act, and subject thereto. Selling without a label is not made an offense, and neither the presence nor absence of a label form any constituent element of the crime.

The conviction should be reversed and the defendant discharged.

Barnard, P. J.,

(dissenting)—By chapter 407, Laws of 1881, it is made a misdemeanor to manufacture, sell or offer to sell adulterated food. The act defines adulteration of food to be the addition of any poisonous ingredient, or any ingredient which renders it injurious to health of person using it. The act further provides that the state board of health may declare certain articles exempt from the provisions of the act. It is made the duty of the state board of health to “fix the limits of variability possible in any article of food,” and for that purpose the board of health is charged with full powers of analysis. The state board of health, acting under these powers, declared that canned peas, in which no greater proportion than three-quarters of a grain of metallic copper to one avoirdupois pound of peas had been used in its preparation, should be exempt from the act, and the declaration provided “and that the same be plainly stated on the label.” The defendants sold some peas without a label. They were convicted of a misdemeanor without proof of the fact that copper was injurious to health, in the food in question. Under the act, the crime was made out without this proof. The board of health determined copper to be injurious and exempted the food with a fixed proportion of copper, but the fact must be stated on the label. All violations of the act are made misdemeanors,, and the sale of canned peas without a label, when copper was used without this label, falls under section 7, of the act which provides that any violation of the provisions of this act should be held and punished as a misdemeanor.

The judgment should therefore be affirmed.  