¶1 —Appellant was charged with á violation of the provisions of Chapter 2, Title 12, of our Penal Code, known as the “Pure Food Law” of Texas, the information and complaint being substantially as follows:—
—“that one T. H. Vaughn, late of the County of Fannin, heretofore, viz: on or about the 20th day of February, A. D. 1919, with force and arms, in the County of Fannin, State of Texas, did then and there in the County and State aforesaid, have in his possession with intent to sell, and did then and there offer and expose for sale a certain article of food, to wit: Ground Meat, which article of food was then and there adulterated in this: He the said T. H. Vaughn did then and there offer and expose for sale said Ground Meat, which was then and there an article of food to which had been added a Sulphite, contrary to the forms of the Statute in such cases made and provided and against the peace and dignity of the State.”
¶2 The facts appearing in the record show appellant to be a man approximately sixty-three years of age, of good standing and reputation in his community, and who has never been arrested or charged with any offense prior to this one. He has been engaged1 in his present business as a butcher for four years, in the town of Honey Grove. In this case he is charged with selling ground meat, to wit, sausage, to which had been added sulphite.
¶3 An inspector of the Pure Food Department, at Austin, visited and inspected appellant’s butcher shop, pronounced it sanitary, but took a sample of the sausage and forwarded it to the Department for chemical analysis, upon which analysis the chemistry department claimed to have found sulphite. When informed of this, ap *257 pellant vigorously denied knowing what sulphite was, or that it was present in said sausagej and testified on his trial that said sausage was composed of three parts fresh beef, killed by his butcher on the day or the day before said inspection, and one part pork trimmings, the latter having been shipped to him by a packing concern in Oklahoma City. He further swore that he had been making and selling sausage of this same combination for several years, and had never used sulphite or heard of it. In the main facts he was corroborated by his butcher, and this evidence is undisputed in the record. Under this state of the case, appellant asked of the trial court the following charge, which was refused:
“Although you might believe from the evidence beyond a reasonable doubt that the defendant offered and exposed the food charged in the information, for sale, and that a sulphite had been added to said food, yet unless you believe from the evidence beyond a reasonable doubt that the defendant knew, or by the use. of reasonable diligence he could have known, that sulphite had been added to said food (if it had been added) you will find the defendant not guilty."
¶4 This charge should have been given. Appellant’s only defense to the prosecution was that he Imew nothing of any foreign ingredients in the sausage, and we believe he was entitled to an affirmative presentation of his defense to- the jury.
¶5 By the terms of Article 710, of said Chapter, above mentioned, the acts therein made punishable must be done “wilfully,” which term includes both intent and knowledge. By the terms of Article 715 of said Chapter, the matters therein are only penal if done “knowingly.” Article 711 of said Chapter, prescribing the punishment affixed to the offense charged against appellant, reads as follows;
“Whoever shall do any of the acts or things prohibited, or.willfully neglect or refuse to do any of the acts or things enjoined by this Act, or in any way violate any of its provisions, shall be deemed guilty of a misdemeanor, and shall be punished by a fine of not less than $25 nor more than $200.”
¶6 We are convinced that it was not the purpose of the framers of this law to make any distinction between those who do, and those who leave undone, any act in violation of the various provisions of said statute and accordingly hold that the violators of the affirmative provisions of the law, as well .as those whose sins are of omission, in a proper case, are entitled to have the question of knowledge submitted to the jury.
¶7 We do not think the other errors complained of will likely occur on another trial, and we will not discuss them.
¶8 For the error indicated, the judgment of the lower court is reversed and the cause remanded.
¶9 Reversed and remanded.