Milk. Evidence, Relevancy and materiality, Competency, Opinion: experts. Practice, Criminal, Conduct of trial. Witness.
In a prosecution under R.L.c. 56, §§ 57, 58, charging the defendant with having in his possession with intent to sell and in receptacles not properly marked milk which was not of good standard quality or from which the cream or a part thereof had been removed, where it has been proved that the defendant had had in his possession with intent to sell milk of the description set out in the complaint, evidence, that he had not intended to have in his possession with intent to sell milk which the statute prohibited or that the milk which he had in his possession and had intended to sell was not of a character injurious to the public, is immaterial on the question of the defendant's guilt.
At the trial together of two complaints, the first charging the defendant with having in his possession with intent to sell milk which was not of good standard quality, contrary to the provisions of R.L.c. 56, § 57, and the second charging him with having in his possession with intent to sell and in receptacles not properly marked milk from which the cream or a part thereof had been removed, contrary to the provisions of § 58 of the same chapter, a witness for the Commonwealth was asked in cross-examination if he had read certain bulletins issued by chemists of the United States Agricultural Department and if certain statements therein were not contrary to statements by him in his direct testimony. He answered that he had read some of the bulletins but that he had not found therein any such statement as the defendant referred to. The defendant then offered a bulletin, corresponding to the description contained in his question of the witness, without further proof of its authentication and offered to show by statements therein facts contrary to some testified to by the witness in his direct examination. Held, that the document did not tend to contradict the testimony of the witness, and therefore was not admissible even in cross-examination.
At the trial together of two complaints, the first charging the defendant with having in his possession with intent to sell milk which was not of good standard quality, contrary to the provisions of R.L.c. 56, § 57, and the second charging him with having in his possession with intent to sell and in receptacles not properly marked milk from which the cream or a part thereof had been removed, contrary to the provisions of § 58 of the same chapter, neither the whole nor any part of a document bearing the title "Milk and Its Relation to the Public Health, House of Representatives, Document No. 702 under the supervision of the Hygienic Laboratory, Bulletin No. 41, W.J. Rosenan, Director, printed in the government printing office, Washington, D.C.," or of a book entitled "The Science and Practice of Cheese-making" asserted by the defendant to have been published by a person whom one of the witnesses had quoted in his direct examination, or of a document called "Bulletin No. 110," asserted by the defendant to have been written by chemists of the Hatch Experiment Station of the Massachusetts Agricultural College, is admissible to disprove assertions of witnesses for the Commonwealth.
It is within the discretionary powers of the judge presiding at the trial of a criminal complaint to determine how far the defendant shall be permitted in cross-examination of witnesses for the Commonwealth to inquire into collateral matters for the purpose of showing that the witnesses are hostile or biased in their opinions, as also to determine whether a witness offered by the defendant as an expert is qualified to give such testimony, and, unless it clearly appears that the judge acts arbitrarily or that the defendant is prejudiced unjustly, the judge's decision in such matters will not be reversed by this court.
BRALEY, J.
The complaints respectively charged the defendant under R.L.c. 56, §§ 57, 58, with having in his possession milk below the standard prescribed by § 56 of that chapter, and milk from which the cream or a part thereof had been removed, which he intended to sell in violation of the statute, and, having been convicted, he urges that the published official documents, articles or bulletins treating of the subject and containing certain statements that milk might be pure even if found to be below the percentage of fat required by our statute, or that protein in normal milk sometimes exceeds the fat, which were offered by him in evidence, were relevant and should have been admitted. But proof of the defendant's intention not to sell milk below the standard, or that milk might be considered as commercially pure or even normal although sometimes lacking the full statutory requirement, was inadmissible. In prosecutions for statutory misdemeanors of the class defined by the statute, the intention or design of the defendant not to violate the law, or proof that the product which he sells is not injurious to the community, may absolve him from moral turpitude but cannot relieve him from the penal consequences of the prohibited act. Commonwealth v. Wheeler, 205 Mass. 384. Commonwealth v. New York Central Hudson River Railroad, 202 Mass. 394, 396, 397, and cases cited.
There is no rule of evidence applicable to either complaint which makes documents of the character here offered competent evidence of the truth of the alleged facts found in the publication.
Nor did the questions asked and excluded in cross-examination of the witnesses for the prosecution have any tendency to contradict their testimony. The various publications therein referred to contained no statement made by either of the witnesses, and they were not responsible for the views of publicists or government officials in which they did not participate.
It also was for the judge to determine how far the defendant should be permitted to inquire into collateral matters for the purpose of showing that they were hostile or biased in their opinions, or whether the witness offered by the defendant as an expert was sufficiently qualified to give evidence. Jennings v. Rooney, 183 Mass. 577, 579. Muskeget Island Club v. Nantucket, 185 Mass. 303. We find nothing in the exceptions indicating that he acted arbitrarily, or that the defendant was unjustly prejudiced. It has long been settled that unless this clearly appears, the decision of the trial judge on questions calling for the exercise of his discretion will not be reversed by this court. Jennings v. Rooney, 183 Mass. 577, 579, and cases cited. Carroll v. Boston Elevated Railway, 200 Mass. 527, 533, and cases cited.
Exceptions overruled.