
    State of Ohio v. Ehinger.
    
      Sale of oleomargarine — Trial for — Not error to permit expert chemist to testify, when.
    
    On the trial of one charged with selling oleomargarine containing coloring matter, it is not error to permit a chemist experienced in the analysis of food products to testify that the article sold resembles, is a substitute for, or imitation of,' butt
    (Decided October 14, 1902.)
    Exceptions to the decision of the Common Pleas Court of Hamilton county.
    Katie Ehinger was tried before a justice of the peace of Hamilton county, and a jury, upon the charge that' she did “unlawfully sell and deliver to one Anthony Sauer one-half pound of oleomargarine, said oleomargarine being a substance in the form of butter, and containing only 4.75 per cent, of butter fats, and made as a substitute for and in imitation of butter, which-said oleomargarine, when so sold, as aforesaid, contained coloring matter, to-wit, butter yellow, contrary to the statute in such cases made and provided.” The jury returned a verdict of guilty, which was followed by an appropriate judgment, the motion for a new trial having been overruled.
    Numerous exceptions were taken upon the trial, and presented to the court of common pleas by a petition in error for the reversal of the judgment. In the court of common pleas, the judgment was reversed because, upon the trial, a witness who had qualified as an expert chemist experienced in the analysis of food products, had been permitted to testify, against the objec-; tion of the accused, that a sample of the article sold “looked like and was a substitute for or imitation of butter.”
    The prosecuting attorney presents here his exception to that ruling of the court of common pleas.
    
      Mr. O. J. Renner, for plaintiff.
    
      Mr. Edward M. Ballard, for defendant, cited and commented upon the following authorities:
    
      Commonwealth v. Filburn, 119 Mass., 297; Birney v. State, 8 Ohio, 230; Commonwealth v. Bean, 80 Mass. (14 Gray), 52; Commonwealth v. Barrett, 108 Mass., 302; State v. Bierce, 27 Conn., 319; Pringle v. State, 1 Re., 283; 7 W. L. J., 67; Torpedo Co. v. Fishburn, 61 Ohio St., 608; Brandon v. Railway Co., 8 Circ. Dec., 642; 17 C. C. R., 705; Sell v. Ernsberger, 4 Circ. Dec., 100; 8 C. C. R., 499; Manke v. People, 24 Hun (N. Y.), 316; Rogers on Expert Testimony (2 ed.), Sec. 10; Stephen on Ev., Art. 48; Cincinnati v. May, 20 Ohio, 211; Turnpike Co. v. Coover, 26 Ohio St., 520; Railroad Co. v. Schultz, 43 Ohio St., 270; Foy v. Railway Co., 6 Circ. Dec., 391; 10 C. C. R., 151; Railroad Co. v. Morey, 47 Ohio St., 207.
   By the Court:

The witness having qualified as an expert chemist experienced in the analysis of food products, might testify to the resemblance of the article sold to that whose sale the statute prohibits. The question for the determination of the jury was whether the accused had sold oleomargarine containing coloring matter, which is forbidden by Section 4200-16, Revised Statutes. It is true that the affidavit not only charged the act which this section prohibits, but it unnecessarily embraced the terms of section 4200-19 by which oleomargarine is defined. But this did not disqualify the witness to testify to that with respect to which he was especially informed, and which directly tended to show the commission of the forbidden act.

Exception sustained.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.  