#### STATE vs WILLIAM NORTON AND OTHERS.

To support an indictment for knowingly selling unwholesome provisions, the provisions sold must be in such a state as that, if eaten, they would, by their noxious, unwholesome, and deleterious qualities have affected the health of those who were to have consumed them.

This was au indictment tried at Fall Term, 1841, of Buncombe Superior Court of Law,-before his Honor Judge MaNly. It charged in substance that the defendants had sold for one dollar to the prosecutor, one T. W., to be eaten as food by him, a bear, which had died a natural death, and which had become ^spoiled, tainted, unwholesome, and unfit for the food of man, the said bear having been dead several days, the defendants well knowing these facts, and the state and condition of the said bear at the time of such sale, and the prosecutor being ignorant thereof. Upon the trial it .appeared in evidence that the bear had died in a pen, either by the violence of the pressure or from starvation, and that the defendants had taken him out and carried the carcass to the prosecutor’s in the night time, and sold it for food. Upon the prosecutor’s adverting to some peculiarity of scent and appearance about the flesh, the defendants assured him that it was good, and that they had shot it in the pen. There was much conflicting testimony as to the appearance of the meat and oil, and also as to its effects upon the health, when taken into the stomach. The Court instructed the Jury that it was not necessary for them to find, that the meat was such as to produce sickness or death when eaten. If they were satisfied from the testimony that the bear was found dead, and in such a state as to render it unfit to be eaten, according to the usages of a decent and Christian people, and the defendants *41knowingly sold it to the prosecutor for food, without disclosing the condition in which it was found, they would be guilty. This part of the charge was excepted to, and there was a rule for a new trial for misdirection. The rule being discharged, and judgment pronounced, in pursuance of the verdict, the defendants appealed1 to the Supreme Court.

*J G. Bynum,*for the State,

cited *State*v *Smith,*3 Hawks 378- 2 Russ. Crim.- Law, 286; 2 East. P. C. 822;- 2 Chitty’s-Crim. L. 556.

Daniel., J.

Knowingly selling unwholesome provisions is a misdemeanor at the common law. *State*v *Smith,*3 Hawks 378. 2 East’s P. C. 822. 1 Rus. on Crimes, 115. The Judge charged the Jury, that it was not necessary that the meat sold should be such as to produce sickness or death, when éaíeii, if it was' in such a state as to' render it unfit to' be eaten, according to the usages of a decent and Christian people'. We think that the charge Was too broad'. The gist of the' offence consists in' the knowingly selling for lucre; provisions, which may be' injurious to the health of those who are to consume them. To support this indictment, the meat sold must have been' in such a state, that, if eaten, it would, by its noxious', unwholesome, and deleterious quality) have affected the health of those Who'were'to have consumed it. *Rex.*v *Dixon,*4 Camp. Rep. 12. The samé case before the Judges of the King’s Bench, 3 Maul, and Sel. 11. We are of the opinion that there must *be*a new trial.

Per Curia-m-, New trial awarded-,-