#### State v. Smith.

-j t From Rockingham. J

Selling unwholesome provisions not fit to be eaten by man, is an of-fence in any one, indictable at the common law.

The defendant was indicted for selling unwholesome provisions, in the following words:

The grand jurors for the state upon their oath present, that Samuel Smith, junior, late of the county of Rockingham, farmer, on the eighth day of November, A. D. 1823,-at Leaksviile, in the county aforesaid, did then and there unlawfully, falsely, maliciously, mischievously and deceitfully sell and dispose of to one David Campbell and others, certain unwholesome and poisonous beef, and did then and there receive 'pay for the same, to the great injury of the said David.Campbell and *379his family, to the great nuisance of the good citizens of the state, and against the peace and dignity of the stale.

The defendant was convicted below and fined, and moved first for a new trial, and then in arrest; both motions having been overruled, defendant appealed.

The Attorney General referred to Respublica v. Teischer, (1 Ball. 335.)

Taylor, Chief Justice.

The first exception,, taken both as a ground for a new trial and in arrest of judgment, that there is no charge of the defendant’s being a trader in beef, cannot be sustained; for the fact charged in the indictment and with the circumstances accompanying it, is indictable by whomsoever committed. It is not necessary to state in such indictment that the defendant acted in violation of any duty imposed on him by his peculiar condition; for it is a misdemeanor at common law knowingly to give any person injurious food to eat, whether the defendant be excited by malice or a desire of gain. The charge in Treeve’s case, was for wilfully, deceitfully and maliciously supplying prisoners of war with unwholesome food, not fit to be eaten by man.. It was laid as an offence at common law; and an exception was taken in arrest of judgment, that it was not indictable; as it did not appear that what was done, was in breach of any contract with the public, or of any moral or civil duty. The defendant was, in fact, a contractor with the public for supplying the prisoners with provisions, but that w’as not stated in the indictment, nor was it held fiecessary to state it; and the conviction was supported upon the broad ground, that the giving of unwholesome victuals, not fit for man to eat, whether from motives of gain, from malice or deceit, was clearly an indictable; offence. (2 East F. C. 821.) There are several precedents of indictments for the same offence, variously modified, stated in 2 Chitty C. Law 556, on which convictions have been had, upon undoubted principles of law. *380It is true, that a very ancient statute was passed farther to aggravate the punishment for selling unwholesome. provisions, bút as I have met with no prosecutions upon }-(; the common law may be supposed to have been weakened by the legislature’s making declarations against offences which were criminal by the common law, when, properly understood. Of this, several remarkable instances are stated in Barrington on the Statutes, 313. It seems upon the whole, that the public health, whether affected through the medium of unwholesome food, or poisoning the atmosphere, or introducing infectious diseases, is .anxiously guarded by the common law. There ought to be judgment for the state.

Hall, Judge.

1 concur in opinion, that the act charged in the indictment is an indictable offence. In 4 Bl. 162, it is said, that it is an offence against public health to sell unwholesome provisions. From this it might be inferred, that unless the public were concerned in the act it ivas not a public offence, as in the case of the King v. Baldock, for supplying prisoners with unwholesome food, he being a public contractor for that purpose, (2 Chitty C. L. 5 5G.) and the case of the King v. Treeve, who was indicted for the same offence. (2 East C. Law 821.) But it is laid down by both these writers, that the person charged need not be a public contractor; that it is a misdemeanor at common law to give to any person unwholesome food not fit for man to eat, lucri causa, or from malice or deceit, apart from other considerations which entered deeply into the demerits of Baldock and Treeve. See also 6 East 133. 141. 2 East C. Law 823. 2 L. Ray. 1179. 3 L. Ray. 487. The offence is one that common prudence cannot guard against, and what is most important, the consequences cannot be calculated. I think judgment 'should be given for the state.

Henderson, Judge, concurred*