
    (Washington County Court of Common Pleas.)
    V. W. Haas v. The State.
    1. A person charged with selling adulterated food, in violation of the act of March 20, 1894, may make the defense based upon the maxim, ignorantia faeti excusat. Therefore held to be error in the trial of such case, after testimony that the article in question was bought by the accused from a manufacturer of good standing, on the assurance of its purity, to reject evidence that he in good faith believed it to be as represented, when the sale was made, and that the reputation of this maker’s goods was that of genuine, pure arcicles. Also held erroneous to refuse an instruction to the jury, that if they found from the evidence that the defendant had sold the food, and it was adulterated as charged; but further should find that he bought it in good faith, from a reputable concern which manufactured it, believing it to be pure, and at the time he sold the food, he still in good faith believed it was not adulterated, and was in nowise neg ligent in not knowing it to be impure, that they should find him not guilty.
    2. As a general proposition, where a statute is silent as to the defendant’s intent or knowledge, the indictment or complaint need not allege, or the State’s evidence show that he knew the fact; his being misled concerning it is matter for him to set up in defense and prove. Held, that these rules apply in prosecutions for the sale of adulturated foods. Also held, that an affidavit, properly entitled, which charged the defendant with having sold to a party named, on a day stated, at a specified county, one-fourth of a pound of food, to-wit: Ground mustard, which was adulterated in the following respect, to-wit: Starch had been added to it, thereby depreciating its strength, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Ohio; was sufficient to put him upon his trial.
    (Decided February, 1895.)
    1. This is a proceeding in error, to reverse a judgment of a Justice of the Peace. The case below was a prosecution under what is popularly known as the “ Food Law,” passed March 20, 1884, the material provisions of which are as follows:
    “Section 1. Be it enacted by the General Assembly of the state of Ohio, that no person shall, within this state, manufacture for sale, offer for sale, or sell any drug or article of food which is adulterated, within the meaning of this act.”
    Section two defines the terms “drug,” and “food,” as used in this statute.
    Section three states what shall be deemed to be “adulterated,” within its meaning. The last clause is as follows :
    “ Provided, that the provisions of this act shall not apply to mixtures or compounds recognized as ordinary articles or ingredients of articles of food, if each and every package sold or offered for sale be distinctly labeled as mixtures or compounds, with the name and percent, of each ingredient therein, and are not injurious to health.”
    Section four says : “ Every person manufacturing, offering or exposing for sale, or delivering to a purchaser, any drug or article of food, included in the provisions of this act, shall furnish to any person interested, or demanding the same, who shall apply to him for the purpose, and shall tender him the value of the same, a sample sufficient for the analysis of -any such drug or article of food which is in his possession.”
    Section five declares the punishment for any violations of sections one and four. «
    2. The affidavit upon which the prosecution is founded, is in these words : “ The State of Ohio, Washington County, ss : Before me, B. E. •Guyton, a justice of the peace in and f.r said county, personally came D. W. Dye, deputy inspector, who being duly sworn according to law, deposes and says, that on or about the 5th day of November, 1894, at the county of Washington aforesaid, one Y. W. Haas, sold to D. W. Dye, one-fourth of a pound of an article of food, to-wit: Ground mustard which was adulter-
    ■ ated in the following respect, to-wit: Starch had been added to it, thereby depreciating its strength, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Ohio; and further deponent saith not. D. W. Dye.”
    3. The record further shows that the plaintiff in error, on the trial, became a witness in his own behalf, and testified among other things, thus:
    “ Q. Where was this mustard, in package or bulk ? A. In bulk.
    “Q. State to the jury where you got that. A. I got it from the India :Spice and Drug Company, this city.
    “Q. State to the jury what your knowledge as to the purity of that mustard was. A. I bought the goods from Ed. Weis, agent for the India :Spice and Drug Company, and he said he would guarantee all the goods pure.
    
      “Q. He was a member of the firm? A. Yes, sir.
    “Q. At the time your clerk sold them, had you any knowledge that ■these spices contained impurities ? A. I had not.
    
      .“Q. You can state whether you bought and sold this mustard under the honest belief that you were selling pure goods, as represented. (Objection to question sustained. Defendant excepted and stated that he expected to prove in answer to this question that he relied upon the represen-, tations of the India Spice and Drug Company, from whom the mustard was purchased, that it was pure English mustard, and that he kept and his
    ■ clerk sold it under the honest belief that it was as represented.)
    “Q. You are acquainted with the India Spice and Drug Company? A. I am acquainted with its members, and also with men who say they know them.
    “Q. You can tell what their reputation is for manufacturing and selling-pure spices. A. I have always understood the firm had a good reputation for making good spices.
    
      “Q. State whether you know the goods manufactured by the India Spice and Drug Company are recognized in the trade here as pure goods.” ■(Objection sustained. Defendant excepted, and stated that he expected to prove that he had the means of knowing the reputation of these goods in the trade here, and - that their reputation is that of genuine pure articles.)
    4. The record also discloses that before the case went to the jury, the justice instructed them as so the law, among other things, saying: “ Knowledge may be necessary to prove to make a crime, but in this case you are not required to find; as I understand the law you are not required to find knowledge, but you may consider intention.”
    To which instructions exception was duty made. Thereupon the defendant below requested that the following special charge be given, viz.: “ If the jury find from the evidence that the defendant, V. W. Haas, on or -about the 5th day of November, 1894, at the county of Washington, in the state Ohio, sold to said D. W. .Dye, one-fourth of a pound of an article of food, to-wit: Ground mustard, which was adulterated as charged in the affidavit filed in this case, but should also find that said V. W. Haas bought the said mustard in good faith from a reputable concern which manufactured the same, believing the same to be pure and not adulterated, and at the time he sold said ground mustard as aforesaid, he still in good faith believed the same to be pure and not adulterated, and was not in any wise negligent in not knowing said mustard was adulterated, the jury will find the defendant not guilty.”
    This instruction the justice refused to give, to which action exceptions were taken. The jury having returned a verdict against the defendant below, a motion for a new trial, based in part on the alleged error of the court in rejecting the evidence offered, and in giving and refusing instructions to the jury, as above given, was made and overruled; whereupon the defendant moved for arrest of judgment, and as to that, also, was overruled. Proper exception was taken to the action upon both motions.
    Of the numerous errors here assigned, only the two will be noticed, which are raised by the foregoing statements of what the record contains. These relate (1) to the defense of ignorantia facti, and (2) to the sufficiency of the complaint. A .contention of the plaintiff in error is, that ignorance of the fact of adulteration, after reasonable diligence in trying to learn the truth, coupled with honest belief that the article sold was pure, is a defense to what otherwise would be a criminal act. He also goes a step farther, and asserts that the affidavit, in order to charge the offense, must lay a scienter — aver knowledge on the part of the seller, that the food sold was adulterated. These propositions are controverted by the state, and on the trial below, as the record discloses, were ruled against the plaintiff in error, to his manifest prejudice, if the claims he makes here, or either of them, bé well founded. They obviously involve an interpretation and construction of the statute in question, and will be determined bjr ascertaining its true meaning, as applied to a case of this kind.
   Sibley, J.

1. The defense of ignorantia facti first will be considered. This at once brings us to the statute under which the case is brought to a consideration of its object, terms, and relevant adjudications. The general purpose of the act manifestly is to prevent the manufacture or sale in this state of adulterated foods and drugs. As “to mixtures and compounds recognized as ordinary articles of food,” however, if they are “labeled” as the statute requires, there is an exception. They lawfully may be sold. Beyond this, sections four and five make certain sales legal by compelling them, for objects therein specified, on penalty of fine and imprisonment. And it seems clear upon an inspection of the act, that its whole scope and intent is, as respects articles of food, to prevent the making and sale of them for food purposes. As an exercise of the police power of the state, its evident policy is to protect the health and punish fraud. That will be accomplished by regarding its inhibition, in this feature, as extending only to the sale of adulterated foods to be used as such. For example, if a grocer bought a barrel of flour which he found to be impure, and so within the statute, if sold as food, it certainly would be lawful to sell it to make paste to be used in hanging paper. As is said in an opinion in a New York case, where a party was charged with selling bad beef, “ the offense is complete if the unwholesome meat is knowingly sold as and for human food ; undoubtedly, if it is sold without any knowledge on the part of the seller that it is to be used for human food, the offense is not indictable; because it might be applied in such a case to the purpose, for instance, of manure, or as food for wild beasts in a menagerie.” (People v. Parker, 38 N. Y. 88 ; Goodrich v. People, 19 N. Y. 574.) While the exposure for sale, or the selling of unwholesome foods, to be used as such, was indictable at common law, these acts were not an offense if they were not exhibited or sold to be ■used for food. (1 Bishop’s Cr. Law, sec. 491,7th ed.) Manifestly the common law principles thus stated, would apply when essentially the same acts are made criminal by statute.

The result clearly is that a sale of adulterated food is lawful in at least two cases, viz-: (1,) when the mixture is of a kind which may be labelled and sold as provided by the act itself; (2,) whenever a sale is made for ■other than food uses. The generality of the prohibition in the first section of the statute must be limited accordingly. Hence it cannot be said to make all sales of adulterated food a violation of the act. Whether such a •sale will be unlawful or not, is therefore a question depending upon its circumstances. The naked fact may not fix that character upon it, even if •conceded to make it prima facie illegal. Besides the instances stated, and notwithstanding by the literal force of its terms, the statute renders any •and all sales of adulterated food criminal, regardless of who made them, yet to this there undoubtedly are two additional exceptions. These are in cases where the impure article is sold by a lunatic or infant under seven years of age. This results from the principle stated by Mr. Bishop, that “whatever is newly created by statute draws to itself the same qualities and incidents as if it had existed at the common law. In other words, the statute is to be interpreted after the rules and incidents of the common law.” •(Stat. Crimes, see. 139 ; 1 Crim. Law, 304,7th ed.) Both of these classes of persons could make a sale, which, though voidable, is not void. (Jackson v. King, 15 Am. D. 364.) But the age of the one class, and the insanity of ■the other was and is a perfect defense of crime, though acts be done which ■otherwise would be unquestionably criminal. How, now, does this case ■stand, on the proposition that the plaintiff’s ignorance of the adulteration -of the food he sold, after reasonable diligence to ascertain its condition, also •excuses him ?

The general principle which applies to apparently criminal acts, both common law and statutory, is stated by Mr. Bishop, the greatest Master in this field who has yet appeared. He says: “ In the law of crime, the maxim is ignorantia facti excusat.” ' As expressed by Gould, J: “Ignorance or mistake in point of fact is, in all cases of supposed offense, a sufficient ex•cuse.” (1 Crim. Law, section 301.) The state contends that this doctrine will not apply, however, because the statute prohibits all sales of adulderated foods, and knowledge of the fact, or bad intent, are not made elements in or descriptive of the offense. But this, as already shown, involves a construction of its terms altogether too literal and narrow. It may be admitted that the offense is shown, prima facie, when a sale of adulterated food is alleged and proved. Such would be the case were the article was sold by an insane person, on that reading of the statute. But it could not preclude the defense of insanity. On principle, then, why should the fact that a naked sale shows apparent crime, cut off the excusing circumstances of innocent mistake as to the impurity of the food sold ? Suppose, for instance, that in order to trap one into violating this law another secretly adulterated a pure article of food which a grocer was selling; as by mixing a small -quantity of sand with sugar; and in utter ignorance of this, the dealer sold it. On the construction of the statute made by the state, the seller would be guilty, and could not be allowed to show the facts supposed as a defense. The argument is, that it is the duty of the seller to know the truth. The law, however, does not so say. That effect of it is got by construction. It therefore leaves open the question of how the obligation to know shall be interpreted. The state’s claim is that at his peril, the dealer must know, .absolutely, as to each sale. We have seen how in one case that interpretation of the duty would work. The other construction is, that the seller is obligated to diligent, honest effort to ascertain the truth, but he is “legally as well as morally justified in acting, like other people, in respect of other things, on what upon careful investigation and inquiry may appear to be the facts ; so that, if believing the appearances, he does what would be legally and morally right were the real facts so, he is not punishable, though he was deceived and the facts were different.” (Bishop’s Stat. Or., sec. 1022.) Which, now, of these opposing views is the more reasonable? Can there be but one answer ? The intentional killing of a human being is presumptively murder. But though done purposely, if the slayer in the proper use of his faculties believed, and had. reason able ground for believing that this was necessary to save him from great bodily harm, he is excused, though in fact he was mistaken as to being in danger. ' (Marts v. State, 26 Ohio St. 162.) And this for the reason that in such a case there could be no criminal intent; and so, though a life is lost by the killer’s mistake, he goes acquit.- He was ignorant of the facts, and acted on what reasonably appeared to be the truth. Why should that not excuse the otherwise criminal act of selling an impure food ? More than fifty years ago our Supreme Court declared that it is “ the intention which gives character to the action, and makes that criminal which otherwise would be exempt grom guilt.” (Anderson v. State, 7 Ohio; pt. 2, 255.)

But it is argued that when a sane person makes a sale of an article of food, the act is voluntary, and if the thing sold be adulterated, though the seller is innocently ignorant of the fact, he has intentionally violated the statute. This, however, is mere confusion of thought. When a dealer is in honest error, and in good faith believes the food he is vending to be pure, he never purposed, nor on this assumption was it possible that he could intend, to do a wrongful act — to violate the law — any more than if he had been non compos mentis, and 80_incapable of crime. -Hence, if the one excuses, and the criminal law has’any basis of reason or justice, the other should also. As our court say, in approving quotation from Mr. Bishop: “When good faith and due care exist, and there is no fault or carelessness of any kind, and what is done.is such as would be proper and just were the fact what it' is thus honestly believed to be, there is no principle known to our criminal jurisprudence by which this morally innocent person can be condemned because of the existence of a fact which he did not know and could not ascertain. On the other band, to condemn him would be to violate those principles which constitute the very foundation of our criminal jurisprudence. Honest error of a fact is as universal excuse for what would . be otherwise a criminal act as insanity.” (Crabtree v. State, 30 Ohio St. 387.)

Counsel for the state cite cases reaching different conclusions upon statutes of a like kind, and there can be no doubt that were, what may be termed the Massachusetts doctrine applied here, the act in question would be given the literal interpretation, by which a morally innocent man can be made a criminal, and punished as such. I do not take time and space to refer to or attempt a criticism of those rulings. That has been done so thoroughly by Mr. Bishop, as to leave nothing for this or any other court to say. (1 Crim. Law, sec. 303a, note 1, 7th ed.; Statutory Crimes, sec. 596a, noth 5, 2d ed.) It is only further requisite to show, what to my mind is perfectly clear, that the law of this state is different. This is stated in an able article in the American Law Review (Yol. 12, 473) defending the Massachusetts rule; and all the referenced to the subject in books and cases agree upon the proposition. The exact point was decided in Ohio in 1837. The case arose under a statute which provided “ that if any person shall harbor or secrete any black or mulatto person, the property of another, the person so offending” should on conviction be fined. In the indictment there was no averment that the party charged “knew” that tbe person he harbored was a slave. The court it.-elf made this point, which was not presented in argument, saying: “ The scienter, or knowledge of the plaintiff in error, of this material fact, was an ingredient necessary to constitute his guilt. This knowledge should have been averred in the indictment and proved on the trial; for without'such knowledge, the act charged as a crime was innocent in its character. We know of no case where positive action is held criminal, unless the intention accompanies the act, either expressly or necessarily inferred from the act itself. • ‘ Ignofantia facti doth excuse, for such ignorance makes the act itself morally involuntary.’ 1 Hale’s P. C. 42.” (Birney v. State, 8 Ohio, 238.) Tbe court rests its decision on the principle of an-earlier case (Anderson v. State, 7 Ohio, pt. 2, 255), which it affirms and applies. The latter lately has been almost literally duplicated, on its facts and holding, in the Supreme Couit of the United States. (U. S. v. Carll, 105 U. S. 611). Both cases are in point so far as the doctrine which makes criminal purpose essential to crime, is concerned. In tbe latter case the opinion shows this, as follows : “ The language of the statute on which this indictment was founded includes the case of every person-who with intent to defraud, utters any forged obligation of the United States. But the offense at which it is aimed is similar to the common law offense of uttering ■ a forged or counterfeit bill. In this case as in that, knowledge that the instrument is forged and counterfeit is essential to make out the crime; and an uttering, with intent to defraud, of an instrument in fact counterfeit, but supposed by the defendant to be genuine, though within the words of the statute, would not he within its object.” The indictment bavin gfailed to aver knowledge, which the act did not require, although it alleged that the paper was passed “ feloniously, and with intent to defraud” a party named, was held to be bad. The Birney case, however, rules the exact proposition here in controversy. It was expressly made the authority for the decision in Miller v. State, (3 Ohio St. 487), and as the learned defender of the contrary doctrine lay, in the article referred to, supra, written in 1878, not only is clearly against it, but “appears to be law to this day in Ohio.” (12 Am. L. R. 473.) And so it is still. Neither the point decided in the Birney case, nor the principles upon which the decision stands, have ever been questioned -in our Supreme Court. On'y as to pleading and proof of scienter, has it been touched in later cases. But this was on essentially different states of fact, which distinguish them, and leave the principle of ;the early case, that ignorance of fact excuses wholly unaffected, except as it is reasserted and applied by way of defense. (Miller v. State, 3 Ohio St. 475; Miller v. State, 5 Ohio St. 275; Picket v. State, 22 Ohio St. 405; Crabtree v. State, 30 Ohio St. 382 ; Farrell v. State, 32 Ohio St. 456.) That our later decisions have been made in liquor cases is quite immaterial. Food and liquor statutes fall into one category as exercises of the police power of the states. (Beer Co. v. Mass., 97 U. S., 25; Mugler v. Kansas, 123 U. S. 623; Powell v. Pa., 127 U. S. 678). The policy of the two classes of legislation is in a large measure the same. The evils of the liquor traffic, however, are so enormously greater than any which thu3 far have arisen from the sale of adulterated foods, that if rigorous rulings in aid of restrictive legislation could be looked for anywhere, they reasonably might be expected in liquor cases. On the point in question, foo*d and liquor laws are read alike in Massachusetts, and this fact serves to show how clearly our Supreme Court has repudiated the doctrine of that state on the point here in dispute. In Com. v. Boynton, (84 Mass. 160), it is held that “ a person may be convicted of being a common seller of intoxicating liquor, although he did not know or suppose the liquor sold by him to be intoxicating.” The converse of this proposition is ruled in the Farrell 'case, (32 Ohio St. 456). The defendant there was charged with selling liquor to be drank on the premises where sold. The statute simply made it “unlawful” to do this. On the trial, the defendant offered evidence to show that the article sold was a “ bitters ” which he in good faith supposed was not intoxicating, though it proved to be so. This being rejected, on conviction, the case was carried up, and the judgment reversed. The court say : The maxim of the criminal law ignorantia facti excusat applies to this case. To give this maxim practical effect in a proper case, is but an assertion of natural justice, for the reason that to render an act criminal, the intention with which it was done must be so — the will must concur with the act.” To make a transaction criminal, there must be both will and act entering into the transaction. Ignorance or mistake in fact, guarded by an honest purpose, will afford, at common law, a sufficient excuse for a supposed criminal act. Bishop says in his work on Criminal Law: “ The doctrine which requires the existence of evil intent lies at the foundation of public justice. There is only one criterion by which the guilt of men is to be tested. It is whether the mind is criminal.” Thus was reasserted and applied the principles of the Birney case, the Massachusetts doctrine, by which, evidently, the trial court had been misled, being rejected. A like conflict with, and denial of it is found in our decisions respecting sales to minors, and drunkards — we holding, and they not, that a scienter is necessary to make such sales criminal. As a great English judge said; though “ the statute says nothing about knowledge,” in order to make an act criminal against its provisions, “ this must be imported into it.” (Reg. v. Sleep, 8 Cox Cr. C. 474). The Farrell case is compiled into the American Reports. (80 Am. R. 614). A note follows it which states that “ when a statute makes an act indictable, irrespective of guilty knowledge, then ignorance of fact is no defense.” Mr. Desty asserts the same proposition. (Am. Cr. Law, sec. 35a.) The note, in support of the doctrine it declares, says: “ It is no defense, for instance; to an indictment for keeping or selling adulterated or intoxicating liquors, that the defendant did not believe them to be intoxicating or adulterated.” Then the Massachusetts and some other cases are cited. But the illustrative instances only bring out sharply the fact that the law is otherwise in Ohio, as the Farrell case expressly rules it, and as in the Birney case, it long ago was decided to be. (Picket v. State, 22 Ohio St. 405.)

Against this plain effect of our Supreme Court decisions, two cases are cited. The first is by the Cuyahoga County Common Pleas, which applies the Massachusetts rule, attempting to distinguish the Farrell case, but not so much as referring to the Birney or Picket cases. I might offset this holding with another, by the same court, and in what appears to me, a much better considered case, wherein the true effect of our adjudications was seen and applied. (State v. Stank, 10 Law Bull. 16). The indictment there was for bigamy. After a review of the Massachusetts and other cases, it was held, (1) that the state “need not aver that the defendant at the time of his second marriage knew his first wife was alive, or that he knew she was not divorced;” and (2) that it was “ competent for the defendant on trial to give evidence tending to show that at the time of the second marriage, he'in good faith believed, and after exercising due diligence, had reasonabie grounds for believing that hjs first wife was dead, or divorced, and if he satisfies the jury of either of those things he is entitled to an acquittal.” Our statute against bigamy is as sweeping andperemptory as the one here in question. “ Whoever,” it says, “ having a husband or wife, marries another, is guilty of bigamy.” (Revised Statutes, sec. 7016). By the same reasoning that would exclude honest error, as a defense, under the food law, it must be denied under this act. Such would be the effect of the Massachusetts cases. In this state it was enacted that “ whoever commits adultery shall be punished,” in a way specified. After its passage a woman married. Her husband was dissipated, and so failed to provide for her that she was compelled to leave him. She read in the papers of the killing of a man of his exact name, in a drunken row, and honestly supposed it was her husband. Thereupon she represented berself as a widow. Eleven years after she last saw or heard from him, she and another man married, both in good faith believing the former husband dead. But, in fact, he was alive. The second husband was indicted for adultery committed by co-habiting under the second marriage. He was convicted, and on the principle of construction which the state here contends for, the conviction was upheld. (Com. v. Thompson, 93 Mass. 23; 1 Bishops Cr, Law, sec. 303a, note 7th ed.) Honest mistake of the fact was regarded as no defense. The strict adherence to the letter of the law, which kills justice and mocks the claims of morality, were the basis of the decision. On the authority of that and like cases, we are asked to perpetrate the same sort of judicial iniquity here.

Altschul v. State, (8 Cit. Ct. 214), decides only a point of practice, and, aside from its dicta, leaves the defense of ignorantia facti, wholly untouched. The learned Judge who delivered the opinion, seems to have been strongly influenced bp the Massachusetts adjudication. The decisive ruling in the Birney case evidently was lightly regarded by him, and the unjustifiable statement of Wharton’s Criminal Law, that it was “rather political than judicial,” accepted as true. The further fact that it was expressly affirmed in Miller v. State, (3 Ohio St. 475), is unnoticed, although as shown above, that circumstance, in the opinion of so able a legal writer as the late Mr. May, makes the doctrine of the Birney case still the law of Ohio. (12 Am. Law Rev. 475). The true point in the Farrell case was also missed. The statute under which it was brought declares “that it shall be unlawful for any person * * to sell in any quantity, intoxicating liquors to be drank in or upon the premises where sold,” on penalty specified. So far as appeal’s, there was neither averment or proof that the defendant knew the “bitters” sold were intoxicating. The statute in this no more than the Pood cases, makes knowledge or intent a requisite of the offense or charge. An earlier case, not referred to, expressly holds that “an indictment which charges that the accused ‘did unlawfully sell intoxicating liquors to,’ a person named, ‘to be drank on the premises where sold,’ sufficiently describes the offense.” (Picket v. State, 22 Ohio St. 405). The obvious effect of these two cases therefore is, to overrule Mr. Desty’s proposition that “ignorance of facts is no defense where the statute makes the act indictable irrespective of guilty knowledge.” Consequently the attempt to distinguish the Farrell case, on his statement of the law, and the note in the American Reports, above referred to, entirely fails.

A further ground of distinction is suggested, which is worthy of the famous critic, who

“ Could distinguish and divide

A hair ’twixt south and south-west side.”

In the liquor case, it is said, the “legislature uses the word unlawful for any person or persons, etc.,” while the food statu'te says “no person shall sell, etc.” Now, what possible difference is there between these expressions as to substance or effect ? To say no one shall do a certain thing, under penalty, is simply to make the doing of it unlawful; while to enact that it shall be unlawful to do that thing, on pain of fine, is to say that none shall do it. Alike in both cases the act is made a crime, and so by law inhibited ; and that is all there is of it. This seems too plain for dispute.

But finally it is asserted that if honest ignorance, after diligent efforts to learn the facts, is a defense, it will defeat the enforcement of the food law. Tnis, in a measure would be true, if it was its real object to punish the morally innocent in common with the wickedly guilty, but not otherwise. On the construction contended for, as has been shown, a dealer could not be certain to escape, if he never bought an impure article; for without his knowledge many articles might be adulterated, with the evil purpose to harm him, and being thus sold, he be made the victim of a rascal, and the law. To my mind it would be difficult to decide which in that case ought to be regarded ás the more culpaple, the authors of the statute, or the fellow who mixed the goods. As I have learned it, the primary object of the law is justice. So to read an act as often and palpably to do most serious injustice, would defeat its presumed purpose, and will not be done unless it be express and imperative to that end, which is not the case here. “ It cannot be assumed,” say an able court, “ that the legislature would attempt such a wrong as to punish as criminal an act which involved no criminal intent. There can be no crime where there is no criminal mind. This principle is as old as the criminal law, and underlies the whole of it. (Alder v. State, 55 Ala. 16).

Moreover, the interpretation which this view demands for the food statute, is the only one which makes it consistent with itself, as well as the principles of criminal law. The act alike forbids the manufacture or sale of impure goods. The man who makes them must know if they are adulterated. To put the seller on the same plane with the manufacturer— that is, to avoid the confounding of innocence with guilt — he who sells can be regarded as within the law, only when he has knowledge, or is culpably ignorant.

In an important English case, the prisoner had possession of government stores, some of which were marked with a broad arrow. The jury, in answer to a question whether the prisoner knew that the copper or any part of it, was marked, answered • “We, have not sufficient evidence before us to show that he did.” The court of criminal appeal held that he could not be convicted. The grounds upon which the ruling was based are thus stated by Coburn, C. J.: “Acte non faeit ream nisi mens sit rea is the foundation for all criminal procedure. The ordinary principle that there must be a guilty mind to constitute a guilty act. applies to this case, and must be imported into the statute, as was held in Reg. v. Cohen, (8 Cox. Cr. C. 41), where this conclusion of the law was stated by Hill. J., with his usual clearness and power. It is true that the statute says nothing about knowledge, hut this must he imported into the statute(Reg. v. Sleep, 8 Cox Cr. C. 472; Aberdere v. Hammett, L. R. 10 Q. B. 162; Reg. v. Moore, 13 Cox Cr. C. 544; Stern v. State, 53 Ga. 229-21 Am. R. 266; Hunter v. State, 1 Head 160-73 Am. D. 164). The last case was a charge of selling unsound pork ; and it was held that if it “was unsound,” but the “defendant did not know it, by ordinary and proper prudence and care, he would not be guilty.”

As Mr. Freeman says. “While it is sometimes held that, where the statute is silent concerning the seller’s knowledge, if, however honestly and after whatever precautions, he is misled to believe” the article “to be pure,” he is punishable if it turn out to be adulterated; yet, by the just doctrine, an unavoidable mistake of the fact, by one whose purpose it is to obey the aw, relile ves him from legal guilt the same as from moral, precisely as in other cases .” (Note to Hunter v. State, 73 Am. D. 175.) I only add that in his discussions of the subject, in the works cited above, Mr. Bishop shows this conclusion to be a clear deduction from the settled principles of criminal law, and also that it is sustained by the great weight of authority.

Should it be suggested that this statute was enacted after like laws in other jurisdictions had been judiciously expounded and applied, as the state contends for here, the answer is obvious and conclusive. It is not a case of the adoption of provisions which carry with them interpretations untouched by our own anjudications in the same or analogous cases. The rule invoked thereby does not apply. The domestic exposition is always controlling. (Bishop’s Stat. Or., section 97.)

On the contrary, in view of the rulings of our own courts, respecting acts upon which precisely liké questions were made, this law falls within the principle that where forms of expression are repeated by a legislative body, with knowledge of the construction given them in the jurisdiction o their enactment, that will be decisive as to their effect. (Mason v. Fearing 9 How. U. S. 258.) As Mr. Bishop states, “ a prior interpretation from an other state will not be followed when antagonista to or further than harmonious with our own laws and judicious usages.” (Statutory Crimes section 97.)

An irreconcilable conflict has been demonstrated between this and other states, and so the ground established for refusing the construction asked. Our doctrine, indeed, still adhered to, was declared in 1837. Consequently this statute must be regarded as enacted in view of and subject to it. The result is that the defense of ignorantia facti may be made to a charge of selling adulterated foods, as of intoxicating liquors to be drank where sold, when that is unlawful. The evidence tendered by the defendant below and rejectQd, and the charge of the justice, with the one refused, as hereinbefore set out, had the effect to to deny the benefit of that defense. The plaintiff in error was entitled to testify as to his own good faith. (Kerrains v. People, 60 N. Y. 121; Ohio Coal Co. v. Davenport, 37 Ohio St. 194.) The charge given was upon a wrong view of the law, and the one asked and refused should have been made.

II. A question is also raised as to the sufficiency of the complaint. Though not necessary, in the view already stated, to a decision of the case, the record presents it and I will pass upon it. The claim is, that knowledge of the adulteration should have been averred. Were the' case on its facts not clearly distinguishable from Birney v. State, supra, I should so hold. But as in my judgment it is; and inasmuch as the rule of pleading and proof in that case was expressly put on its special and peculiar circumstances, in this particular it may be regarded as exceptional.

“The general rule is well settled that án indictment for a statutory offense * * * charging the facts constituting the crime, in the words of the statute, and containing averments as to time, place, person and circumstances to identify the particular transaction, is good as a pleading, and justifies putting the defendant on trial.” (People v. West, 106 N. Y. 293 ; 1 Bishop’s Cr. Proced., sections 611, 614; Hagar v. State. 35 Ohio St. 269; U. S. v. Carll. 105 U. S. 612; State v. Campbell, 29 Texas, 44, 94 Am. D. 251-253.) Mr. Bishop states a more special rule, in the following words: “ Where the statute is silent as to the defendant’s knowledge, the indictment need not allege or the government show that he knew the fact; his being mislead concerning it is matter for him to set up in defense and prove.” (Statutory Crimes, sections 663, 729.)

That would be decisive but for the supposed effect of the Birney case. There is, however, a valid ground for distinction, growing out of the nature-of this case as compared with that. As above is shown, the sale or exposure for sale of unwholesome food is an indict ible offense at common law. Our food statute creates the same offense, extending it, however, to all cases of adulteration. Those dealing in foods, from the nature of the case, are fairly presumed to know the character of what they handle and sell. When an article of food is called for, by a customer, unless expressly sought for another purpose, the presumption from the usual course of business is, that it was desired for food uses. Moreover, the purchaser asking for a particular article by the common understanding must be presumed to wish what'he calls for, and not that thing mixed with something else, which, if not positively injurious, is less valuable. The seller then, stands in such relations to customers and to what he sells, as to be subject to the presumptions stated, with respect to all sales of foods. The result is, that from the naked fact of selling an adulterated food, there arises - a prima facie case of sale for food uses, with knowledge which implies deceit and fraud, and so a purposed violation of law. Consequently, when it is alleged that a party has sold an impure article of food, and the facts which point out to adulteration, with time and place of sale are set out, a case of intentional transgression, in effect, is stated. That, therefore, is all the state is called on to-establish. Formal allegation or proof of knowledge is unnecessary, because the statute does not require this, and the transaction of sale prima facie implies guilt. The broad difference between this and the Birney case, in that respect, will at once be apparent, when its facts are considered. The indictment theré did not aver knowlege on the part of the accused that the-person harbored was a slave. The court say that because under our constitution slavery was impossible, there could be no “legal inference”’ of such knowledge. “ On the contrary, the presumption is in favor of freedom”; and as a consequence, perfectly clear, of innocence, until knowledge was alleged and proved. Hence the rule of pleading there declared. But manifestly it does not apply where, as here, all the presumptions from the transaction are so radically different. Nor will this case, on the point now in view, fall within the class where knowledge of some independent fact is-requisite to make a sale criminal, as in the selling of liquor to drunkards- and minors. It is properly within the principle established in respect to a sale of liquors to be drank on the premises where sold. In that case, the-Supreme Court has ruled the points (1) that no averment of knowledge, beyond what arises from the nature of the transaction is necessary, as respects the intoxicating quality of the article sold; and (2) that ignorance of the fact after proper effort to ascertain the truth, is a complete defense. (Picket v. State, 22 Ohio St. 405; Farrell v. State, 32 Ohio St. 356.) Here the-actual decision in the Altschul case also is applicable. (8 C. C. R. 214). The Picket case I regard as decisive on the rule of pleading, and as not at all in conflict with the Birney case, when the widely differing states of fact-are taken into account.

The only Ohio citation to the contrary, is the ruling in Vestor v. State,. in the Hamilton County Common Pleas. As a holding by one so eminent in criminal law as the presiding judge who made that decision, it is entitled to great respect. But the opinion does not show that our own adjudications-were critically examined, and seems to go rather narrowly on a construction of the statute as to the class of sales which would be criminal — not-taking into account the important presumptions arising out of the sale itself, in view of the common understanding and ordinary course of business.. (Goodrich v. People, 19 N. Y. 574). In this case the indictment alleged a sale of beef by the defendant, to divers citizens, as “ good and wholesome beef and food;” and the court say that this meant “ that he sold it to such citizens to be eaten by them;” that is, for food uses. This only declares what is the fair presumption when it is alleged that a dealer sells any article of food. That the sale was for some other purpose, so as to take it out of the statute is, as appears to me, like ignorance of the adulteration, or the insanity of the seller, a matter of defense. This reading of the statute is-but just to the state, and no hardship to the accused, as it only calls upon him for proof of facts to rebut what fairly is presumable from the sale, and of which he reasonably may be supposed to have the best knowledge. It also leaves open the door to legitimate enforcement of the law, by exempting the innocent from penalties that are the desert of the guilty only.

A single question remains. Must the complaint negative the exception made by the.proviso at the end of the third section? Clearly not, as I think. It is no part of the enacting clause, and does not enter into the description of the offense, which is defined by the first section. Becker v. State, (8 Ohio St. 391), is decisive at this point. As there is said, such a “proviso must be taken advantage of by the accused in making a defense on the facts.” The affidavit then is in may opinion legally sufficient. But for error in cutting off the plaintiff in error from the defense of ignorantia facti, the judgment is reversed, and he is awarded a new trial.

W. G. Way, Ellenwood & Smith, Nye & Follett, for plaintiff.

Amos Dye and J. A. Hamilton, for state.  