COMMONWEALTH of Pennsylvania

Max FEINBERG, Appellant
Supreme Court of Pennsylvania
433 Pa. 558,  253 A.2d 636 (1969)

[p. 560] OPINION

 JONES, Justice.

 Appellant Max Feinberg owned and operated a cigar store in the skid-row section of Philadelphia.  One of the products he sold was Sterno, a jelly-like substance composed primarily of methanol and ethanol and designed for cooking and heating purposes.  Sterno was manufactured and sold in two types of containers, one for home use and one for industrial use.  Before September, 1963, both types of Sterno contained approximately 3.75% Methanol, or wood alcohol, and 71% Ethanol, or grain alcohol; of the two types of alcohols, [p. 561] methanol is far more toxic if consumed internally.  Beginning in September of 1963, the Sterno company began manufacturing a new type of industrial Sterno which was 54% Methanol.  The cans containing the new industrial Sterno were identical to the cans containing the old industrial Sterno except in one crucial aspect: on the lids of the new 54% Methanol Sterno were imprinted the words 'Institutional Sterno.  Danger.  Poison.  For use only as a Fuel.  Not for consumer use.  For industrial and commercial use.  Not for home use.'  A skull and crossbones were also lithographed on the lid.  The carton in which the new Sterno cans were packaged and shipped did not indicate that the contents differed in any respect from the old industrial Sterno.

 According to its records, Sterno Corporation sent only one shipment of the new Sterno to the Philadelphia area; that shipment went to the Richter Paper Company and was received on December 17, 1963.  Charles Richter, president of the firm, testified that his company, in turn, made only one sale of the new industrial Sterno, and that was to appellant.  Richter testified that his records indicated that appellant received the Sterno on December 21 and, since Richter had not opened any of the cartons, he was unaware that he was selling appellant a new type of industrial Sterno.  On December 27, Richter received a call from appellant informing him that the cartons contained a new type of Sterno and that appellant wished to return the portion of his order that he had not sold.  The unused cartons were picked up by Richter's deliveryman the next day.

 Meanwhile, between December 21 and December 28, appellant had sold approximately 400 cans of the new industrial Sterno.  Between December 23 and December 30, thirty-one persons died in the skid-row area [p. 562] as a result of methanol poisoning.  In many of the cases the source of the methanol was traced to the new industrial Sterno.  Since appellant was the only retail outlet of this type of Sterno in Philadelphia, he was arrested and indicted on thirty-one counts charging involuntary manslaughter and on companion bills charging violations of the Pharmacy Act (Act of September 27, 1961, P.L. 1700, s 1 et seq., 63 P.S. s 390--1 et seq.)[n. 1]

1.  Section 9 of the Act, dealing with poisons, states in pertinent part:
'(a) Poison means and includes the compositions of the following schedules:
Schedule 'B'
(12) Methyl alcohol or formaldehyde, and preparations containing one per centum or more of these compounds, except when used as a preservative and  not sold to the general public.
(d) No person shall sell, distribute or furnish, either directly or indirectly, except on prescription, any poisons enumerated in Schedules 'A' and 'B' * * * unless there is affixed a poison label to the package, box, bottle or paper, in which the poison is contained.  The word 'poison' shall be distinctly shown on said label, together with the name of said place of business of the seller, all of which shall be printed in red ink.  In addition the name of such poison shall be printed or written thereupon in clear print.
(e) No person shall sell, distribute or furnish any poison named in Schedule 'A' or 'B' * * * unless on inquiry it is found that the person desiring it is aware of it poisonous character and it satisfactorily appears that the poison is to be used for a legitimate purpose.
(i) Any person violating any of the provisions of this section is guilty of a misdemeanor * * *.'

 Appellant was convicted on seventeen counts of involuntary manslaughter and on twenty-five counts of violating the Pharmacy Act by Judge Charles L. Guerin, sitting without a jury.  Judge Guerin held that appellant had violated the Pharmacy Act and that, therefore, he was guilty of a misdemeanor-manslaughter in each of the seventeen cases.  Five of the manslaughter convictions were appealed to the Superior Court which affirmed four of them, although on a different theory.  Commonwealth v. Feinberg, 211 Pa.Super. [p. 563] 100, 234 A.2d 913 (1967).  In writing for a six-judge majority, Judge Montgomery held that appellant had not violated the Pharmacy Act and, therefore, was not guilty of a misdemeanor-manslaughter, but that the evidence justified the conclusion that appellant was guilty of involuntary manslaughter.  Judge Hoffman dissented, maintaining that the Superior Court should not affirm the convictions on the grounds of involuntary manslaughter when the trial court had apparently rested its decision solely on the violation of the Pharmacy Act.

 The first question we must answer is whether appellant violated the Pharmacy Act.  The Act defines any product containing more than one per cent methanol as a poison and provides that any person selling such a product must properly label the container, warn the purchaser of the dangerous propensities of the product and satisfy himself that the purchaser will use the product for a legitimate purpose.

 Certain facts are clear in this case.  First, the Sterno sold by appellant is a poison as defined by the Act.  Second, appellant did not comply with the requirements outlined above.  Judge Guerin held that this was enough to justify a conviction under the Act; the Superior Court unanimously disagreed.  Judge Montgomery wrote, 'Our close study of the 1961 Pharmacy Act leads us to the conclusion that it was not intended to cover general commercial products but was limited to drugs and devices as defined in the act and that the provisions respecting poison are to be followed only when poisonous drugs or poisonous devices are sold in connection with the practice of pharmacy or [p. 564] incident thereto.'  (211 Pa.Super. at 106, 234 A.2d at 916.) We agree with this conclusion and will add only a few observations to supplement the excellent analysis contained in Judge Montgomery's opinion.

 First, after viewing the Pharmacy Act as a whole, we conclude that the legislature intended only to regulate the practice of pharmacy.  The title to the Act states: 'An Act relating to the regulation of the practice of pharmacy, including the sales, use and distribution of drugs and devices at retail; and amending, revising, consolidating and repealing certain laws relating thereto.'  The Act contains seven sections in addition to the title, definitional and repealer sections; six of these sections deal exclusively with the practice of pharmacy.  The only section which conceivably is not limited to the practice of pharmacy is the ninth section dealing with poisons.  We cannot believe that the legislature intended to slip a general criminal statute controlling the sale and distribution of poisons in the middle of a statute regulating the practice of pharmacy.

 Second, if the legislature did intend that Section 9 should be a general criminal statute regulating the sale and distribution of poisons, then we feel that a comment made by the Attorney General in an opinion holding that phosphorus matches are not a 'poison' as defined by the 1887 version of the Pharmacy Act is relevant: 'If this act were construed to apply to phosphorus contained in articles of merchanidise not intended or used as drugs or medicines, it might then be said with great force that it would violate section 3 of art.  III of the constitution of Pennsylvania, which provides: 'No bill, except general appropriation bills, shall be passed containing more than one subject, Which shall be clearly expressed in its title,' because there is no notice in the title of the intention to regulate [p. 565] the sale of such articles of merchandise.' Phosphorus Matches, 21 Pa.Dist.R. 554, 556 (1912).

 Third, subsection (b) of Section 9 gives the State Board of Pharmacy the power to add to or delete from the proscribed list of poisons contained in subsection (a).  If Section 9 is interpreted as a general criminal statute, then this would mean, in effect, that the Pharmacy Board could create a new general criminal offense by adding a new substance to the proscribed list of poisons.  We cannot believe that the legislature ever intended that the Pharmacy Board have such power.

 Fourth, in holding that appellant had violated the Pharmacy Act, Judge Guerin stated that he reached this result in part because of significant changes in the 1961 Pharmacy Act.  We have studied all the relevant versions of the Pharmacy Act beginning with the Act of May 24, 1887, P.L. 189, and we find that the Act of 1961 does not differ in any material respects from these earlier acts.  While it is true that for the first time, the Act of 1961 includes a definition of the word 'person' in the definitional section, nevertheless, we do not interpret this to mean that the legislature intended to increase the scope of the Act's coverage.  The relevant portions of the sections dealing with poisons in the various acts are virtually identical.  The changes in the 1961 Act are insignificant; we cannot conclude that the legislature intended a major change in emphasis by these slight alterations which were made in the 1961 Act.

 The second issue in this case is whether appellant is guilty of involuntary manslaughter in each or any of the four appeals presently before us.  The Penal Code defines involuntary manslaughter as a death [p. 566] 'happening in consequence of an unlawful act, or the doing of a lawful act in an unlawful way * * *.'  (Act of June 24, 1939, P.L. 872, s 703, 18 P.S. s 4703) Since we have determined that appellant did not violate the Pharmacy Act in selling the new industrial Sterno, the second portion of this statutory definition must be controlling. [n. 4]  When a death results from the doing of an act lawful in itself but done in an unlawful manner, in order to sustain a conviction for manslaughter the Commonwealth must present evidence to prove that the defendant acted in a rash or reckless manner.  Commonwealth v. Ushka, 130 Pa.Super. 600, 603, 198 A. 465 (1938); Commonwealth v. Gill, 120 Pa.Super. 22, 31, 182 A. 130 (1935).  The conduct of the defendant resulting in the death must be such a departure from the behavior of an ordinary and prudent man as to evidence a disregard of human life or an indifference to the consequences.  Commonwealth v. Hartle, 200 Pa.Super. 318, 324, 188 A.2d 798 (1963).  Furthermore, there must be a direct causal relationship between the defendant's act and the deceased's death.  Commonwealth v. Root, 403 Pa. 571, 170 A.2d 310, 82 A.L.R.2d 452 (1961); Commonwealth v. Comber, 374 Pa. 570, 581, 97 A.2d 343, 37 A.L.R.2d 1058 (1953).

4.  We express no opinion as to whether appellant violated the Pennsylvania Liquor Code in selling Sterno for drinking purposes.  At least two courts have held that the manufacture of moonshine, which violates liquor control laws, is merely malum prohibitum and that if a death results from drinking the moonshine, the violation of the liquor code is insufficient to justify a conviction for misdemeanor manslaughter. People v. Pavlic, 227 Mich. 562, 566, 199 N.W. 373, 35 A.L.R. 741 (1924); Thiede v. State, 106 Neb. 48, 51, 52, 182 N.W. 570, 15 A.L.R. 237 (1921).

 We have searched in vain for cases from this Commonwealth involving factual situations similar to the one now before us.  We have, however, found four cases from other jurisdictions which are on point.  In the [p. 567] leading case, Thiede v. State, 106 Neb. 48, 182 N.W. 570 (1921), the defendant gave the deceased moonshine containing methanol, the drinking of which resulted in his death.  While noting that the defendant had violated the state prohibition laws, the court refused to rest the manslaughter conviction on this statutory violation, holding that the manufacturing and distribution of moonshine was merely malum prohibitum and not malum per se.  The court continued, 'We cannot go so far as to say that (dispensing moonshine), prompted perhaps by the spirit of good-fellowship, though prohibited by law, could ever, by any resulting consequence, be converted into the crime of manslaughter; But, where the liquor by reason of its extreme potency or poisonous ingredients, is dangerous to use as an intoxicating beverage, where the drinking of it is capable of producing direct physical injury, other than as an ordinary intoxicant, and of perhaps endangering life itself, The case is different, and the question of negligence enters; for, if the party furnishing the liquor knows, or was apprised of such facts that he should have known, of the danger, there then appears from his act a recklessness which is indifferent to results.  Such recklessness in the furnishing of intoxicating liquors, in violation of law, may constitute such an unlawful act as, if it results in causing death, will constitute manslaughter.'  (106 Neb. at 57, 58, 182 N.W. at 573.) (Emphasis added.) See also, People v. Pavlic, 227 Mich. 562, 567, 199 N.W. 373 (1924); State v. Keever, 177 N.C. 114, 116, 97 S.E. 727 (1919), reversed on other grounds, State v. Phillips, 264 N.C. 508, 142 S.E.2d 337, 342 (1965); State v. Takano, 94 Wash. 119, 122, 123, 162 P. 35 (1916).

 We conclude, after studying the record, that appellant fits within the blackletter rule laid down in Thiede and that the Commonwealth has made out all [p. 568] the elements necessary to warrant a conviction for involuntary manslaughter.  First, the record establishes that appellant sold the Sterno with the knowledge that at least some of his customers would extract the alcohol for drinking purposes.  Witnesses for the Commonwealth testified that when they purchased the Sterno from appellant, they would merely say 'make one' or hold up fingers to indicate how many cans they wanted; one witness testified that appellant referred to the Sterno as shoe polish and on one occasion shouted to him on the street asking how he and his wife were making out with their shoe polish; finally, the witnesses testified that appellant asked them to conceal the Sterno under their coats when leaving his store.  Such conduct does not square with the conclusion that appellant was merely selling the Sterno for cooking and heating purposes.  Second, appellant was aware, or should have been aware, that the Sterno he was selling was toxic if consumed. The new industrial Sterno was clearly marked as being poisonous.  Even the regular Sterno is marked 'Caution.  Flammable.  For Use only as a Fuel' and if consumed internally may have serious consequences.  Furthermore, when appellant was informed about the first deaths from methanol poisoning, he told the boy who worked in his shop to tell any police who came around that there was no Sterno in the store.  Appellant also told the police that he had never purchased any Sterno from the Richter Paper Company.  This evidence indicates to us that appellant was aware that he was selling the Sterno for an illicit purpose.

 Appellant presses several contentions for our consideration.  First, he claims that the Commonwealth has not established the necessary causal link between the sale of the Sterno and the deaths, citing Commonwealth v. Root, supra.  We cannot agree.  First, appellant [p. 569] sold the Sterno knowing, or having reason to know, that some of his customers would consume it.  Second, some of his customers did consume the new industrial Sterno and died as a result.  The Commonwealth's expert toxicologist testified that in several of the cases death could only have resulted from consumption of the new as opposed to the regular Sterno.  Since appellant was the only retail outlet for the new Sterno in Philadelphia, these persons must have died from drinking Sterno purchased in appellant's store.  Third, Root does not help the appellant.  Root involved a drag racing situation.  The decedent died when he negligently passed the defendant on a two-lane road and collided with a truck.  This Court held that the defendant could not be held criminally responsible for the deceased's death because there was no direct causal connection between the defendant's act in engaging in a drag race and the deceased's death.  The court in Thiede, in answering an argument similar to the one now made by appellant, stated: 'Defendant contends that the drinking of liquor, by deceased was his voluntary act and served as an intervening cause, breaking the causal connection between the giving of the liquor by defendant and the resulting death.  The drinking of the liquor, in consequence of defendant's act, was, however, what the defendant contemplated.  Deceased, it is true, may have been negligent in drinking, but, where the defendant was negligent, then the contributory negligence of the deceased will be no defense in a criminal action.'  (106 Neb. at 58, 59, 182 N.W. at 574) See also: State v. Takano, 94 Wash. 119, 123, 162 P. 35 (1916).

* * *

 Orders affirmed.