Opinion
November 19, 1909.
Thomas Kelby [ James W. Ridgway with him on the brief], for the appellant.
Francis K. Pendleton, Corporation Counsel [ Herman Stiefel and Harry S. Sullivan with him on the brief], for the respondent.
The appellant was convicted of a violation of the Sanitary Code of the board of health of the city of New York, in that he did have and offer for sale certain confections that contained sulphurous acid, an ingredient deleterious and detrimental to health, and in particular in violation of the 68th section of the said Code, that provides: "Sec. 68. No person shall have, sell or offer for sale in The City of New York any food which is adulterated or misbranded. The term food as herein used shall include every article of food and every beverage used by man and all confectionery. Food, as herein defined, shall be deemed adulterated: * * * (g) If, in the case of confectionery, it contains terra alba, barytes, talc, chrome yellow, or other mineral substance or poisonous color or flavor, or other ingredient deleterious or detrimental to health; or any vinous, malt or spirituous liquor or compound or narcotic drug." He was sentenced to pay a fine of ten dollars, or in default to imprisonment in the city prison for five days.
It is urged against the judgment that the mere possession of such confections is not an offense under this section, and that there was no proof that the defendant had the confections for sale or offered them for sale. Buckley, an inspector, testified that he visited certain premises where the defendant carried on a "candy jobber" business; that he saw the defendant at his place of business, informed him that the witness was an inspector come to examine his candies; that he examined a number of candies in boxes, and took six samples thereof; that he paid the defendant ten cents for the six samples which were taken and delivered to the chemist of the health department. The witness further testified that he asked how much he owed to the defendant for these samples, whereupon the defendant "told me ten cents, and I paid him ten cents." As the witness asked how much he owed for the confections, and the defendant named a price, which was paid and accepted, this transaction was a voluntary sale, unaffected by the circumstance that it was made to a buyer who theretofore had said that he was an inspector who desired to examine candies. Moreover, we think that the record justifies the conclusion that the defendant had for sale or was offering for sale these confections. They were taken from the confections kept in the defendant's place of business. The defendant admits that he was a "jobber" of candy, that he sold candies to the shops, that he had purchased these candies from a manufacturer and that he had them at this place of business. There was no contention that these confections from which the samples were taken were bought for consumption by the defendant or for any other use outside of his business of resale.
It is further contended that the said section 68 does not apply to "candy jobbers" in that the criminal intent is a necessary part of the crime. The provision in its terms applies to a candy jobber, if he be a person who sells or offers for sale, and such, as we understand, is the business of a "jobber" — in other words, a middleman. As we read the provision, intention is not an element of the offense, and it is not essential that it should be. ( People v. Kibler, 106 N.Y. 321; People v. Werner, 174 id. 132.) The Legislature has seen fit to constitute the act itself the offense. If the statute seem severe in isolated cases, of which the one at bar may well be an example, if the uncontradicted contention of the defendant be true that he was deceived by the manufacturer, the courts have no powers of remission, limitation or multiplication in the face of the plain language of the statute. Such legislation has been justified by the paramount purpose to preserve the public health, because experience has taught that if such statutes make intention to deceive and to defraud an essential part of the offense, they are of "little use and rarely accomplish their purpose." ( People v. Kibler, supra, 324.)
The judgment must be affirmed.
WOODWARD, BURR, RICH and MILLER, JJ., concurred.
Judgment of conviction of the Court of Special Sessions affirmed.