
    Commonwealth vs. John D. Smith.
    The provisions of the St. of 1864, c. 122, § 4, prescribing penalties for the selling of adulterated milk, were not repealed by the enactment of the St. of 1868, c. 263, prescribing in § 1 penalties for the selling of such milk with knowledge of the adulteration.
    Indictment charging that the defendant on March 6,1869, at Boston, “ with force- and arms did unlawfully offer for sale and sell to one Gilman Currier, for the sum of eighteen cents, a large quantity, that is to say, two quarts, of adulterated milk, that is to say, a certain quantity, to wit, two quarts of milk, to which a certain quantity, to wit, one pint, of water had been added.”
    In the superior court, before the jury were empanelled, Devens, J., overruled a motion of the defendant to quash the indictment for want of an allegation that the defendant sold the milk knowing it to be adulterated; and ruled “ that .the indictment was good under the St. of 1864, c. 122, § 4, and that it should be tried without regard to the provisions of the St. of 1868, V. 263 ; ” and at the trial he refused a request of the defendant for an instruction to the jury “that the Commonwealth must aver and prove that the defendant sold the milk knowing it to be adulterated; ” and instructed them that, if the sale was proved, “the only question in the case to be determined by them was, whether the milk was adulterated when sold.” The defendant was found guilty, and alleged exceptions.
    
      
      J. F. Pickering, for the defendant.
    
      C. Allen, Attorney General, for the Commonwealth.
   Chapman, C. J.

The St. of 1864, c. 122, § 4, prescribed as the penalty for selling or offering for sale adulterated milk, or milk to which water or any foreign substance has been added, a fine of twenty dollars. In prosecutions under this act, it was not necessary to prove the knowledge of the seller that the milk had been adulterated. Commonwealth v. Farren, 9 Allen, 489. The act of selling without knowledge was regarded as an act of criminal carelessness.

The St. of 1868, c. 263, § 1, prescribing for a like offence, with the additional fact that the seller knows the milk to be adulterated, a fine of one hundred dollars, treats the knowledge as an aggravation of the offence. This section does not repeal the former act by implication ; for both may stand together. Nor is the former statute expressly repealed; but the second section of the last named act recognizes it as still in force, by declaring that the penalty mentioned in the preceding section “ and that prescribed in the act to which this is in addition ” may be recovered in the manner which it states. This section declares that the act is in addition to the former act; and the fact that the statute is entitled “ an act to amend” the former act is immaterial. Exceptions overruled.  