Commonwealth v. Kevin

Commonwealth v. Kevin

Opinion

 [*25]   [**594]  OPINION BY MR. JUSTICE MESTREZAT:

The defendant, who is engaged in the grocery business in the city of Philadelphia, was tried and convicted in the court of quarter sessions of Philadelphia county on an indictment charging him with having sold "one pint of raspberry syrup, the said raspberry syrup then and there containing an added substance and ingredient, to wit: salicylic acid, which is poisonous and injurious to health." The indictment  [**595]   [***3]  was found under ] the Act of June 26, 1895, P.L. 317, entitled "An act to provide against the adulteration of food and providing for the enforcement thereof," and commonly known as the pure food law. The 1st section prohibits the manufacture or sale of adulterated food, the 2d section defines the term "food" as used in the act and the 3d section provides, inter alia, that "An article shall be deemed to be adulterated within the meaning of this act: (a) in case of food. . . . (7) If it contains any added substance or ingredient which is poisonous or injurious to the health." The defendant was indicted for a violation of the 7th clause of the 3d section of the act.

On the trial of the cause it was shown that the defendant had sold a bottle of raspberry syrup and it was admitted by him that it contained salicylic acid. It appeared from the evidence that the acid was a substance foreign to raspberry syrup. Expert testimony was introduced by the commonwealth and the defendant ant to prove what salicylic acid is, and whether it is poisonous and injurious to health. The commonwealth expert made an  [*26]  analysis of the syrup and testified that the acid was injurious to health; that [***4]  it was dangerous because it was apt to produce disease; that the words "poisonous" and "injurious to health" were almost synonymous in cases where the poison is not always fatal; that if continuously used, the acid is injurious to health in any quantity, but if not so used its injuriousness would depend upon the person taking it. The defendant's expert testified that salicylic acid would not be classed in the group of poisons; that whether or not it is poisonous or injurious depends upon the amount taken and how it is used, which applies to arsenic or any other poison; that if the acid was taken in a harmful amount it would affect injuriously the digestion, the kidneys and the heart; that all poisons must be administered medicinally and that witness had known of salicylic acid being administered beneficially in medicinal doses; that the acid is a substance foreign to raspberry syrup.

The trial court submitted the case to the jury and charged that the only question to be determined by them was whether or not salicylic acid was poisonous or injurious to health; that if it was, it was the duty of the jury to convict. A verdict of guilty was returned by the jury and the defendant,  [***5]  having been sentenced, appealed to the Superior Court, which, by a divided court, affirmed the judgment of the trial court. He thereupon appealed to this court.

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