The appellant was prosecuted in the court below on affidavit and information for a misdemeanor. Trial, conviction and judgment.
The sufficiency of the affidavit and information was called in question by motions to quash and in arrest, which were ■overruled.
The affidavit was as follows:
“Be it remembered, that on this day, before me, Daniel M. Ransdell, clerk of the criminal court of Marion county, In■diana, personally came William D. Griffin, who being duly .sworn, upon his oath says, that Charles Schmidt, on the 12th ■day of November, A. D. 1881, at and in the county of Marion, and State of Indiana, did then and there unlawfully have in his possession, with the intent then and there to sell the •same, the meat of certain sick, diseased and injured animals, to wit: the meat of certain hogs, contrary,” etc.
The affidavit was duly subscribed by the affiant, and the jurat of the clerk was properly added. The information followed the terms of the affidavit.
The prosecution was based on the following section of the .statute:
“ Whoever kills, for the purpose of sale, any sick, diseased, or injured animal; or who sells, or has in his possession with intent to sell, the meat.of any such sick or diseased or injured animal, — shall be fined not more than five hundred dollars nor less than fifty dollars, to which may be added imprisonment :in the county jail not more than six months.” R. S. 1881, sec. 2070.
The first question that seems to present itself is, what was the intent and meaning of the Legislature in the enactment of the above provision ?
The section is evidently not to be taken in its exact literal .sense.
*43It is found under the article entitled “Against Public Health.”
The evident object of the provision was to prevent the killing of such animals for the purpose of sale for food, or selling, or having in possession with intent to sell, for food, the meat of such animals.
The Legislature evidently did not intend to prevent the killing of such animals with intent to sell, or the selling of the meat, for such purposes as would not affect public or individual health; and the killing for sale, or the sale of the meat for other harmless purposes, for which it might have a commercial value, was not intended to be interdicted. The statute is to be construed as if the interdict had been put upon the killing for the purpose of sale for food, and the selling, or having in possession the meat with intent to sell it for such purpose.
Another point arises in the construction of the statute.
"Was it the intention of the Legislature to make the acts therein specified an offence, without any knowledge on the part of the accused of the character or bad quality of the animals or meat? "We think not.
Without such knowledge there could be no intent to do wrong. “Where such intent is wanting,” says Mr. Bishop, “he commits no offence in law, though he does acts completely within all the words of a statute which prohibits the acts, being silent concerning the intent.” 1 Bishop Crim. Law, sec. 345.
The doctrine is illustrated by the case of Commonwealth v. Boynton, 12 Cush. 499, which was a prosecution for selling unwholesome veal, where the court said: “ The precedents of indictments for offences similar to that intended to be set out in the present indictment, are quite numerous, and are uniform in alleging, not only that the act of sale was made knowingly, but also in averring that the defendant well knew, at the time of the sale, the coi’rupt and unwholesome condition of the arti*44cles sold.” We shall advert to this case again in the course of this opinion.
Numerous authorities might be cited to the point that guilty knowledge is an essential element of the offence, though it does not enter into the statutory description of it, but we deem it unnecessary. We are clear that by the statute in question it was not intended to punish acts done in ignorance of the character or deleterious quality of the animals or meat.
Before a conviction can be had under the law, then, it must appear that the animals were killed for the purpose of sale for food, or the meat sold or had in possession with intent to sell for such purpose, and that the accused had knowledge of the bad qualities of the animals or meat.
Having ascertained what seems to us to be the true intent and meaning of the law, it remains to enquire whether the affidavit and information, charging the offence in the language of the statute merely, are sufficient.
We are of opinion that they are insufficient. We are aware, of course, that in the great majority of cases it is sufficient to charge a statutory offence in the language of the statute creating it; but this is a rule that is by no means universal. The affidavit and information neither charges the purpose for which the meat was intended to be sold, nor any knowledge on the part of the defendant of its qualities.
The construction we place upon the statute is narrower than the general words. By construction, we limit the operation of the general words to cases where the accused had knowledge of the quality of the article, and where the sale made, or intended, was for food. In such cases it is not sufficient to charge the offence in the language of the statute. In connection with this point, we take pleasure in endorsing what the counsel for the State have said of an American writer upon criminal law. In their brief, the counsel say: “ The greatest American writer upon criminal jurisprudence, a man who is not a mere compiler of authorities, thrown together in such a way as to bewilder himself and confuse every body else, but *45one who uses authorities to illustrate great principles of justice, advises the pleader generally to follow the statute, and use no other words if the statute gives any sort of definition of the offence. Bishop Statutory Crimes, sec. 386.”
The author above alluded to lays down the rule applicable to such cases as that before us, as follows: “ Suppose, again, the statute is in general terms, yet by construction it has a specific application, narrower than the general words; in such a case, the indictment must correspond as well with the judicial interpretation as with the letter of the enactment.” 1 Bishop Crim. Procedure, sec. 628.
The language of the statute here is general, but it was intended to include those only who had knowledge; hence knowledge must be averred. So the language is general in respect to the purpose of sales, or intended sales, but the intention was to prohibit sales for food; hence a sale, or intended sale, for food should be averred.
We do not care to extend this opinion by noticing in detail the cases referred to by Mr. Bishop in support of the doctrine. We may, however, refer to one or two of them. In the case of The Mary Ann, 8 Wheat. 380, 389, Mr. Chief Justice Marshall stated the rule of pleading, as follows:
“ It is, in general, true, that it is sufficient for a libel to 'eharge the offence in the very words which direct the forfeiture ; but this proposition is not, we think, universally true. If the words which describe the subject of the law are general, embracing a whole class of individuals, but must necessarily be so construed as to embrace only a subdivision of that class, we think the charge in the libel ought to conform to the true sense and meaning of those words as used by the legislature.”
The case of Commonwealth v. Boynton, supra, was a prosecution for knowingly selling unwholesome provisions, viz., a leg of veal, based on a statute which made it unlawful to knowingly sell, etc. The indictment followed the terms of *46the statute in the description of the offence, but this was held to be insufficient.
It was held necessary to aver that the defendant had knowledge of the condition of the meat at the time it was sold; that the allegation that the defendant “ knowingly sold,” etc., was insufficient. This decision is commented upon by Mr. Bishop, and evidently receives his decided approbation, as founded upon correct legal principles. 2 Bishop Crim. Procedure, sec. 868.
A reputable writer upon the criminal law of Indiana, states the rule thus: “ When the statute is not to be taken in the broad meaning of the words used, but to be limited by construction to a special subject or matter, the indictment should not simply charge the ci’ime in the language of the statute, but should limit the case, and bring it within the construction placed upon the statute.” Moore’s Crim. Law, sec. 171.
A case in point, which we do not find cited by either of the authors above mentioned, is that of Anderson v. The State, 7 Ohio, 607. There Anderson was indicted for aiding and abetting one Stevens in passing forged paper.
The statute did not in terms make knowledge of the false character of the paper on the part of the aider or abettor, an element of the offence; and the indictment, following the language of the statute, did not charge such knowledge. It was held, however, that such knowledge was necessary to constitute the offence, and that it must be charged in the indictment. United States v. Carll, 16 Reporter, 673.
There are numerous cases, in this State and elsewhere, in which it has been held sufficient to charge an offence in the language of the statute creating it, and this is undoubtedly correct where the statute contains an accurate description of the offence. But there are other cases in which that mode of pleading has been held sufficient, where there were implied exceptions to the statutes, as in some of the cases on the subject of the sale of intoxicating liquors. But those cases are *47not entirely parallel with that before us, and should not be-allowed to control it.
The accused has a right to have all the essential elements, that enter into the offence charged in the indictment or information, so that he may know what he .has to meet, whether' those elements are expressed in terms in the statute, or enter into the offence by construction.
Nothing is gained to the State by departing from the well established principles of law in this respect; nor is there any good reason for adopting a loose and uncertain mode of pleading in criminal cases.
This also is the legislative view of the question. By sec. 1755, R. S. 1881, it is provided'that “the indictment or information is sufficient, if it can be understood therefrom— * * Fifth. That the offence charged is stated with such a degree' of certainty that the Court may pronounce judgment, upon a conviction, according to the right of the case.”
Upon conviction in this case, what was made certain? The answer is, that the defendant unlawfully had in his possession the meat of certain diseased hogs, with intent to-sell the same. The other elements that enter into the offenceare left to uncertainty.
The word “ unlawfully ” does not help the matter, for the defendant may have had the possession unlawfully in a variety of ways without knowing the quality of the meat, or the intent to sell it for food.
Can the court pronounce judgment according to the right of the case, when a part only of the facts constituting the of-fence are charged, or found true by the verdict ? This question, in our judgment, admits only of a negative answer.
Again, sec. 1759 provides that “ The defendant may move to-quash the indictment or information when it appears upon the face thereof, either— * * Fourth. That the indictment or information does not state the offence with sufficient certainty.”
The information should have been quashed.
*48The judgment below is reversed, and the cause remanded for further proceedings in accordance with this opinion.