
    The People of the State of New York, Respondent, v. Joseph Daly, Appellant.
    Crimes — false label — counterfeit — strict proof of knowledge of falsity of label required to warrant conviction where article sold was as represented.
    On trial of a defendant, charged with violating section 2354 of the Penal Law in keeping and offering for sale an article bearing a false label, where it appears that though the label was false and counterfeit the article sold was genuine and as represented, strict proof of knowledge of falsity should appear to warrant a judgment of conviction.
    
      People v. Daly, 216 App. Div. 710, reversed.
    (Argued January 13, 1927;
    decided January 25, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 19, 1926, which affirmed a judgment of the Court of Special Sessions of the city of New York convicting the defendant of a violation of section 2354 of the Penal Law.
    
      Henry Clay Greenberg for appellant.
    The judgment of conviction is wholly unsupported by the evidence. The crime as charged in the information was not committed. The record is barren of any proof showing that the defendant had knowledge of the falsity of the label without the proof of which the People could not establish guilt. (People v. Franklin, 198 App. Div. 712.)
    
      Joab H. Banton, District Attorney (Edwin B. McGuire of counsel), for respondent.
    The judgment of conviction was warranted by the evidence. (People v. Willis, 158 N. Y. 392; People v. Luhrs, 127 App. Div. 634; 195 N. Y. 377; People v. Sanducci 195 N. Y. 361; People 
      v. Poulin, 207 N. Y. 73; People v. Atlas, 183 App. Div. 593; 230 N. Y. 629; People v. Rodawald, 177 N. Y. 408; People v. Long, 150 App. Div. 500.)
   Per Curiam.

The information charges a violation of Penal Law, section 2354, as follows: “ The said defendant on the 21st day of November, 1924, at the City of New York, in the county of New York, unlawfully and knowingly did keep and offer for sale to the public generally an article of merchandise, to wit: an overcoat to which was affixed the markings, Worumbo Manufacturing Company, then and there well knowing that the said markings were false and counterfeit of trademarks of the said Worumbo Manufacturing Company and were affixed to the said coat without the consent of the said company in violation of section 2354 of the Penal Law of the State of New York.”

The evidence establishes that defendant sold an overcoat of genuine Worumbo cloth to which was affixed a false and counterfeit label purporting to be the trade-mark label of the Worumbo Company. He had received labels, not from the Worumbo Company, but from those who manufactured Worumbo cloth into garments to whom the Worumbo Company furnished labels. He had in his possession both genuine and false labels. From the fact that he had spurious labels in his possession, it was inferred that he knew the true from the false. Such might have been a reasonable inference if the false label had been attached to a garment made of a cloth other than that manufactured by the Worumbo Company. Plainly the principal purpose of the Legislature was to protect the manufacturers and the public from deceptive labels attached to goods that were not what the label represented them to be. Strict proof of knowledge of falsity should appear when only the letter of the law is disregarded and the false label is not used to deceive.

For all that appears, defendant, when he sold the overcoat, knew not which was the true label and which the false, and knew not that either was false.

The judgment of the Appellate Division and that of Special Sessions should be reversed and a new trial ordered.

Cardozo, Ch. J., Pound, Crane, Andrews and Lehman, JJ., concur; Kellogg, J., absent.

Judgment reversed, etc.  