The first instruction appears to have been applied to the absence of proof that there was any previous contract for supplying milk to Mary Cogan, or any express contract of sale at the time of delivery. The instruction, that a delivery of' milk by a dealer to a customer might be deemed an act of sale, was correct, and proper to be given.
The instruction was also correct that both parties engaged in the distribution of milk from the same wagon, and cooperating therein, knowing it to be adulterated, were severally liable, as well as jointly.
The act of sale is the same, and the offence the same, whether the defendant sold for himself or for another.
Exceptions overruled.
At April term 1871 of the superior court, after this decision, the defendant filed a motion to arrest the judgment for want ol jurisdiction of the offence, and Dewey, J., by his request, reported the question for the determination cf this court, before whom it was argued in November 1871.
Heard, for the defendant.By the St. of 1868, c. 263, § 2, the superior court had not original, but only an appellate jurisdiction. The term “ complaint ” is technical, descriptive of proceedings before magistrates. Shaw, C. J., in Commonwealth v. Davis, 11 Pick. 432, 436. See also Rex v. Robinson, 2 Burr. 799, 805; Commonwealth v. Howes, 15 Pick. 231, 233 ; The King v. Carlile, 3 B. & Ald. 163; Rex v. Buck, 2 Stra. 679; 1 Russell on Crimes (4th ed.) 88 ; Purcell Crim. PI. 4. The mention of other methods of proceeding impliedly excludes that by indictment 2 Hawk. c. 25, § 4.
C. Allen, Attorney General, for the Commonwealth,cited Gen. Sts. c. 114, § 6; c. 176, § 2 ; Colburn v. Swett, 1 Met. 232, 235 ; Taunton v. Sproat, 2 Gray, 428; Commonwealth v. Hudson, 11 Gray, 64, 66.
Chapman, C. J.This is an indictment under the St. of 1868, c. 263, § 1, for selling adulterated milk, knowing the same to be adulterated. The penalty for the first offence is $100. By § 2, the penalty may be recovered on complaint before any court of competent jurisdiction. The defendant contends that the word “ complaint ” is technical; and that the language of the statute is exclusive, and does not authorize an indictment. But the usual import of the term “ may,” as used in the statute, is permissive, and not exclusive; and the whole legislation on the subject shows it to be so in this case. By the Gen. Sts. o. 114, § 6, the superior court has jurisdiction of all crimes, offences and misdemeanors. By e. 176, § 2, when the fine does not exceed $100, police courts have jurisdiction concurrently with the superior court. The method of prosecution in the superior court is by indictment, and not by complaint; but in the police court it is by complaint; and the words “ may be recovered on complaint before any court of competent jurisdiction, and one half of the amount of fine imposed shall go to the complainant or informer,” are used here with reference to the appropriation of the fine in cases where there is a complainant, and not for the purpose of excluding the jurisdiction of the superior court in cases where no person desires to obtain a part of the fine. We think the superior court has jurisdiction to proceed by indictment.
Motion overruled.
Heard, for the plaintiff in error. Q. B. Train, Attorney General, for the Commonwealth.Judgment and sentence to pay a fine of $300 were then rendered by the superior court against the defendant, who theréupon sued out a
Writ of error to reverse the judgment for the reason that the indictment did not aver any previous violation of the statute by him and therefore no other punishment than a fine of $100 was warranted by its provisions. The judgment was reversed, with the consent of the attorney general, and judgment and sentence for a fine of $100 were rendered in this court under the Gen. Sts. c. 146, § 16, which provide that, “ when a final judgment in a criminal case is reversed by the supreme judicial court on account of error in the sentence, the court may render such judgment therein as should have been rendered, or may remand the case for that purpose to the court before which the conviction was had.”
The plaintiff in error moved for costs, under § 17, which provides that “ if the defendant in a criminal case is discharged on a writ of error, the legal costs shall be borne by the Commonwealth; ” and the motion was argued in March 1872.
Gray, J.The provision, now incorporated into the Gen. Sts. c. 146, § 17, that if the defendant in a criminal case is discharged upon a writ of error the legal costs shall be borne by the Commonwealth, was first enacted by St. 1842, e. 54, § 3. At that time, upon the reversal of a judgment in error for excess in the sentence, the only judgment which could be given was for the discharge of the prisoner. Shepherd v. Commonwealth, 2 Met. 419 Britton v. Commonwealth, 1 Cush. 302. The subsequent enactment of St. 1851, c. 87, repeated in the Gen. Sts. e. 146, § 16, authorizing this court, upon reversing a judgment for error in the sentence, to render such judgment as should have been rendered, or to remit the case for that purpose to the court before which the conviction was had, cannot be construed to deprive a party'of his costs, who has prevailed upon the writ of error; and in effect obtained his discharge from the original judgment, al though he is sentenced anew to a lesser punishment.
Judgment for costs against the Commonwealth