
    
      Supreme Court-General Term-first Department.
    
      March, 1886.
    PEOPLE v. KERIN.
    Oleomargarine act—Wrongful intent necessary to-OFFENSE UNDER SECTION 8, CHAPTER 183, LAWS of 1885—Constitutional law.
    The violation of the provisions of section 8, chapter 185, Laws of 1885 (Oleomargarine act), depends upon an intent to impose one article for another, both in the prohibition as to the manufacture and as to the sale of the-simulated article.
    Accordingly, where on the trial of an indictment under said section for selling oleomargarine for butter, the prosecution conceded that the-product sold as dairy butter, and which was not such, was purchased and sold by the defendant as and for butter, and in the belief that ift was butter. Held, that the defendant could not be convicted; that there - being no evidence of the use of coloring matter in the compound, the-question as to the constitutionality of the provision of the section, making possession an intention to do wrong, was not involved.
    Whether such provision be constitutional, quaere.
    
    Appeal from a judgment of the Court of General Sessions-of ¡New York, Hon. Eufus B. Cowing, city judge, presiding, rendered January 11,1886, convicting defendant, Daniel Kerin,, of the misdemeanor of selling oleomargarine for butter in violation of the provisions of section 8, chapter 183, Laws of 1885,. as amended by chapter 458 of the laws of the same year. •
    Upon the trial the defendant admitted that at the time and place mentioned in the indictment he had in his possession a. quantity of an article from which the sample was taken, which, was being offered for sale as and for butter made from unadulterated milk or cream, and sold as and for butter, the product, of the dairy, in the ordinary course of his retail grocery business ; that at the time and place charged in the first count of the indictment the sample produced was sold as and for butter, the product of the dairy, by one of defendant’s clerks and salessnen in the ordinary course of defendant’s retail grocery business; that the defendant was present and knew of the sale. 'There was also testimony on behalf of the prosecution to the •effect that the substance was not butter made from unadulter.ated milk or cream, but was what is commonly known as oleomargarine. There was no proof of the use of coloring matter therein. The prosecution then rested and elected to go to the jury on the first count of the indictment
    The people conceded that the article in question was purchased by the defendant as and for butter, the product of the dairy, and that he believed it to be such; that he sold it as such in that belief, and that the sample sold by his clerk, as charged in the first count of the indictment, was sold as and for butter, the product of the dairy, in said belief. Thereupon the defendant rested.
    Counsel for defendant then requested the court to direct a verdict of acquittal, which was denied, and an exception taken. Counsel for defendant requested the court to charge the jury, that if, after reasonable care, the defendant made an honest mistake of fact, they must acquit, which was denied, and an ■exception taken. Counsel for defendant then moved in arrest ■of judgment, and for a new trial upon the minutes and upon 6he exceptions, and on the ground that the verdict was against :£he evidence, which was denied, and an exception taken.
    The jury found a verdict of guilty.
    This appeal, from the judgment of conviction entered thereon, was argued at the same time and upon the same points of counsel as the following case of People v. Hill (p. 144).
    
      Reynaud & Harris, for appellant
    
      Randolph B. Martine, district attorney (De Lancey Nicoll, assistant), for the people, respondent
   Brady, J.

The appellant was indicted for a violation of the laws of the State, relating to the manufacture and sale of a substance known as oleomargarine, which is not a product of the ■dairy, and although the indictment contained several counts, the people elected to proceed under the first count, which was-framed upon the act of '1885, chapter 458. ■ It was conceded by the prosecution that the compound,' which was sold by the: appellant as dairy butter, and which was not such, was purchased by him as and for butter, was believed by him to be-butter, and was sold as butter in that belief. This concession disposes of the conviction. It cannot be maintained. The-chapter referred to (supra), by section 3 amends section 8 of chapter 183 of the Laws of 1885, and by its terms prohibits the manufacture by any person of any oleaginous substance-not produced from milk or cream, with intent to sell the same ■ for butter or cheese, made from unadulterated milk or cream, and from having the same in his possession, or offering the same - for sale with such intent, and declares that no article or substance or compound, so made or produced, shall be sold forbutter or cheese, the product of the dairy. This section is the only one under which the appellant can be held to account, if ‘ ■ at all, and it will at once occur to the reader that the violation of its provisions depends upon an intent to impose one article-for another, both in the manufacture and in the sale of the simulated article. Ho person shall manufacture the substance-described with intent to sell the same for butter, or have the same in possession, or offer the same for sale with such intent. The appellant did not violate this law. He bought the article-, he sold for butter, believed it to be butter, and sold it for butter. He did not intend to sell oleomargarine, or any other substance, for butter when it was not butter. He intended to sell what he-believed to be butter as and for butter, and bis intention, and his acts leading to it, were lawful and unexceptionable under-the provisions of the section referred to. He must intend to dawrong ; that is, to sell some other substance than dairy butter for butter, which he does not do when he buys it as butter, receives it as such, and sells it in such belief. It may be said that underfurther provisions of the section referred to than those named, he may nevertheless be convicted, for the reason that, having-such a compound in his possession as he sold, such possession is declared to be conclusive-evidence of an intent to sell the same for butter, but this answer is not responsive. The latterprovisions relate to the coloring, by any process, whereby the product shall be made to resemble butter, and when that is added to the manufacture, and the article prohibited is in possession, such possession is conclusive evidence of an intent to sell The effect of this extraordinary legislation is, that, in order to convict a person for a violation of its acts in relation to oleomargarine, there must be an intent to sell the same for dairy butter; but if the product be colored so as to resemble butter, then the intent required exists as the result of the coloring. In this case there was no proof on that subject, and hence the statute does not supply the proof of intent, which would have been furnished if evidence of the use of coloring matter had been given. This view renders it unnecessary to consider the constitutionality of the provisions making possession an intention to do wrong; that is, to sell one article for another, and thus to perpetrate a fraud It may well be seriously doubted whether the Legislature can say that an article which may be lawfully manufactured and sold, when so manufactured and in possession, may be regarded as designed to be sold for something else, and, therefore, for a fraudulent and criminal purpose. This would, in effect, prohibit the manufacture which the Legislature has not the power to accomplish, it would seem. People v. Marx, 99 N.Y. 334; 3 N.Y. Crim. 200.

Without further discussing this element of the case, however, the decision must be a reversal of the conviction for the reasons •assigned

Ordered accordingly.

Davis, P. J., and Daniels, J., concur.  