People v. John W. Williams, Inc.

Scott, J.:

The section of the Sanitary Code* which defendant has been convicted of violating provides as follows: “Section 42. No meat, vegetables or milk, not being then healthy, fresh, sound, wholesome or safe for human food or the meat of any animal that died by disease or accident, shall be brought into The City of New York or held, kept, offered for sale or sold as such food anywhere in said City; nor shall any such food, substance or articles be kept or stored therein. * * * ”

The prosecution proved, and the fact was not disputed, that on September 2, 1914, the defendant had in its possession the carcass of a badly diseased hog. This constituted prima facie proof of defendant’s guilt, and the sole question presented for the consideration of the court was whether the presumption of guilt deducible from such proof had been met and overthrown by the testimony offered in behalf of defendant. It was proved beyond contradiction that the hog had been delivered at defendant’s premises about midnight of September first (when the only person in charge of the premises was a watchman), and that defendant had not offered the hog for sale or made any effort to conceal it. In fact, it was testified to that very early in the morning of September second, one of defendant’s employees, deeming the appearance of the hog to be suspicious, had made some effort to find one of the inspectors of the department of health to make an examination. There was also evidence undisputed, and not inherently incredible, that a Federal inspector, through whose hands the hog had passed before delivery to defendant, had sent an order or message, which was delivered, directing defendant to hold the hog until it could be properly examined.

We recognize that the justices of the Court of Special Sessions are constituted the triers of the facts in a case like the present, and that their determination on the facts should not lightly he overturned. Consequently, if the case presented upon the evidence a fairly disputable question as to the guilty intent of the defendant, a necessary ingredient of the crime charged, we should not be disposed to disturb defendant’s conviction. We can find no such question. Only by rejecting all of the evidence tendered by defendant, and convicting certain apparently reputable witnesses of willful and causeless perjury, and substituting suspicion for proof, can the conviction be upheld. The accusation against defendant involves charging it with the willful commission of a crime arid requires something more than a mere suspicion to warrant a conviction.

The order or judgment appealed from must be reversed and the defendant discharged.

Lattghlin and Page, JJ., concurred; Clarke, P. J., and Davis, J., dissented.

* See Cosby’s Code of Ordinances (Anno. 1914), 500, § 42; now Sanitary Code, § 163; Cosby’s Code of Ordinances (Anno. 1915), 401, § 163.—[Rep.