delivered the opinion of the court.

Appellants were convicted of adulterating milk in that Humberto Zapata, owner of a café where milk, coffee, and drinks were served, and his codefendant Cecilio Acevedo, a waiter, kept and offered for sale intended for human consumption, milk adulterated with water, mixed artificially. .

The evidence discloses that the milk was kept in the restaurant to be served with coffee to the customers; that while the inspectors were there no milk was sold and that said article had been received in the establishment shortly before their arrival.

In People v. Morillo, 50 P.R.R. 704, this court expressed its doubt as to the criminal responsibility of an employee of an establishment similar to the one in the case at bar, where no sale of adulterated milk was effected, even though it was kept in the establishment for sale. In that case we gave the benefit of the doubt to the defendant and he was acquitted. In the present case we are ready to say that the waiter of a restaurant who has not sold milk, even though the establishment is open to the public for business, is not responsible for this offense. The same rule, however, does not apply to the owner of the establshment, who because of his being owner of the business, is responsible for the offense, even though he is not present or has not made any actual sale, provided the establishment is open to the public. People v. González 63 P.R.R. 138, 140.

*339Tlie judgment is reversed as to appellant Cecilio Acevedo who is hereby acquitted and affirmed as to Humberto Zapata, owner of the café.