"The grand jurors for the State, upon their oath, present that Samuel Smith, junior, late of the county of Rockingham, farmer, on *Page 209 the 8th day of November, A.D. 1823, at Leaksville, 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 his family, to the great nuisance of the good citizens of the State, and against the peace and dignity of the State."
The defendant was convicted below and fined, and moved first for a new trial and then in arrest; both motions having (379) been overruled, defendant appealed. 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 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 willfully, deceitfully, and maliciously supplying prisoners of war with unwholesome food, not fit to be eaten by man. It was laid as an offense 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 was not stated in the indictment, nor was it held necessary 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 offense. 2 East P. C., 821. There are several precedents of indictments for the same offense, variously modified, stated in 2 Chitty C. Law, 556, on which convictions have been had upon undoubted principles of law. It is true that a very ancient statute was passed further to aggravate the punishment for selling unwholesome provisions, but as I have met with no prosecution upon it, the common law may be supposed to have been weakened by the Legislature's (380) making declarations against offenses 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, *Page 210 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.