
    The People of the State of New York, Resp’ts, v. Daniel Mahoney, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June, 1886.)
    
    1. Misdemeanor—Oleomargarine—Proof of guilty knowledge not NECESSARY—LAWS OF 1882, CHAP. 246, § 1.
    Where a statute provides that any one who shall sell oleomargarine, butterine, suine, or other substance not butter, and represent the same to be butter, he shall be deemed guilty of a misdemeanor, it is not necessary for the prosecution to prove a guilty knowledge on the part of the seller; he subjects himself to the penalties of the statute by making the representations, not knowing it to be true.
    
      2. Same—Section 3.
    Where the statute provides that such sale by any person shall be presumptive evidence of his guilt, this presumption cannot be met by proof of the absence of knowledge and intent to deceive, but by proof controverting the evidence of the sale or false representation.
    3. Same—Adulteration.
    The sale of a substance largely butter, but adulterated with a substance not butter, is within the statute.
    Appeal from a judgment of the court of sessions of Erie county, upon a verdict convicting the defendant of the offense of selling a substance not butter, representing the same to be butter, contrary to the provisions of chapter 246 of the laws of 1882, also from an order denying defendant’s motion in arrest of judgment, and an order deny-: ing his motion for a new trial.
    
      Tracey C. Becker, for app’lt; Geo. T. Quinby, assistant district-attorney, for resp’ts.
   Smith, P. J.

The first section of the statute under which' the defendant was indicted, provides that any person who-shall sell, either at wholesale or retail, any oleomargarine, butterine, suine, or other substance not butter, and represent the same to be butter, shall be deemed to be guilty of a misdemeanor, and upon conviction shall be subject to the penalties therein prescribed. The second section provides that the sale by any person of such oleomargarine, butterine, suine or other substance not buttór, representing the same to be butter, shall be deemed presumptive evidence of the guilt of such person.

The evidence shows that the defendant sold, at his grocery store in Buffalo, an article which he represented to be butter, and which on being analyzed was found, according to the testimony of the witness who analyzed it, to contain • about seventy-five per cent of butter, and twenty-five per' cent, or thereabouts, of foreign fat or fatty substances other than butter. The article sold was not shown to be oleomargarine, suine or butterine. There was no evidence ■ that the defendant knew that the article sold contained any substance which was not butter.

Two questions are presented on this appeal. The first is, whether the conviction can be maintained in the absence, of proof that the defendant knowingly and intentionally misrepresented the article sold to be butter. The offence is described in the first section of the act, and as there described it consists in the sale of an article that is not butter, the seller representing it to be butter. To meet the requirements of that section it is enough to prove the sale and the false representation. Whether or not the seller knows his representation to be false, or intends to deceive, is iminaterial. He subjects himself to the penalties of the statute by making the representation, not knowing it to .be true. The like construction was put upon a similar statute in Massachusetts. Commonwealth v. Farren, 9 Allen, 489. And the decision was subsequently approved. Commonwealth v. Nichols, 10 id., 199; Commonwealth v. Waite, 11 id., 264. See, also, People v. Nobles, 1 N. Y. Crim. Rep., 459; Regina v. Woodrow, 15 Mees. & Wels., 404; Commonwealth v. Boynton, 2 Allen, 160; Barnes v. State, 19. Conn., 398.

But it is contended by the defendant’s counsel that the second section of the act makes the proof of sale and false representation only presumptive evidence of guilt; that such presumption may be repelled, and in fact was repelled, by proof that the defendant did not know that the butter sold by him was adulterated. We are not prepared to assent to that position. The object of the second section, as we read it, is to dispense with the necessity of proving guilty knowledge or intent. This it does by providing that proof of sale and false representation shall be presumptive evidence of guilt. The presumption is not to be met by showing the absence of knowledge and intent to deceive, which, as we have seen in considering the first section, is wholly immaterial, but it may be met by controverting the testimony on the part of the prosecution tending to show the sale or the false representation.

The other question is, whether the case is within the statute, the sale being, not of spurious butter, such as oleomargarine, butterine or suine, but of genuine butter, the product óf the dairy, which- had been adulterated by the addition of some foreign substance. The question is answered by the plain language of the act. It condemns the sale, not only of the various lands of manufactured spun- ■ pus butter above mentioned, but also of any other substance not butter, the seller representing it to be butter. Here twenty-five per cent, or thereabouts, of the article sold, being of a substance which was not butter, the case is as clearly within the statute as if the adulteration had been to the extent of seventy-five per cent. The difference is only in degree. If adulterations of that sort were permitted the purpose of the act would be defeated.

That the legislature had the constitutional power to pass the act" referred to is not questioned by the appellant’s counsel. With its policy we have nothing to do.

We think the judgment and orders should be affirmed.

Haight and Bradley, JJ., concur; . Barker, J., not sitting.  