
    PEOPLE v. BRIGGS.
    
      N. Y. Court of Appeals Second Division;
    March, 1889.
    1. Trial.—Burden of proof.—Oleomargarine act.] The provision of L. 1885, c. 188, § 21,—that section 7 of the same statute, prohibiting the manufacture of imitation butter or cheese, shall not apply to products manufactured or in process of manufacture at the time of the passage of the act—does not make it necessary for the People, in an action for the penalty imposed by section 7, to show that the product had not been so manufactured or in process of manufacture before the act, but the burden is on the defendant who has the means of knowledge, to show the fact if it be so, in defense.
    2. Trial.—Charge.— Cogency of proof in civil ease.] An action by the People to recover a statutory penalty for an act forbidden by law, under sanction of such penalty, to be recovered in the name of the People, in addition to the fines and punishments affixed to the act as a misdemeanor,—is a civil action within the rule that in a civil' action it is sufficient to sustain a recovery if there is a preponderance of evidence, though without proof beyond reasonable doubt.
    
    3. Trial, motion to separate and elect between causes of action.] An application on the trial to require the plaintiff to separate allegations of the possession of a prohibited article from allegations of its sale ; or allegations of the production of such article from, allegations of making or having with intent to sell, etc.; and that he be required to elect between them as separate causes of action, is a matter in the discretion of the trial court and not reviewable-in the court of appeals.
    Appeal from judgment of the General Term of the first department, affirming judgment entered on verdict.
    
      Albert Reynaud, for appellant.
    
      William P. Quin, for respondent.
    
      
       See note at the end of this case.
    
   Bradley, J.

The right to maintain this action is-dependent upon the statute, which, at the time in question, provided that no person “ shall render or manufacture out of any animal fat, or animal or vegetable oils not produced from unadulterated milk or cream from the same, any article or product in imitation or semblance of or designed to take the-place of natural butter or cheese ^produced from pure unadulterated milk or cream of the same, nor shall he . . . mix, compound with, or add to milk, cream or butter, any acids or other deleterious substance or any animal fats or animal or vegetable oils not produced from milk or cream,, with design or-intent to render, make or produce any article- or substance or any human food in imitation or semblance of natural butter or cheese, nor shall he sell, keep for sale,, or offer for sale, any article, substance or compound made,, manufactured or produced in violation of the provisions of this section, whether such article, substance or compound shall be made or produced in this State or in any other State or country ” (Laws of 1885, ch. 183, § 7). And that “Xo person shall manufacture, mix or compound with or add to natural milk, cream or butter, any animal fats or •animal or vegetable oils, nor shall he make or manufacture •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, or have the same in his possession, or offer the same for sale with such intent,, nor shall any article, substance or compound so made or produced, be sold for butter or cheese, the product of the dairy. If any person .shall coat, powder or color with annatto or any coloring matter whatever, butter or oleomargarine, or any compounds of the same, or any product or manufacture made in whole or in part from animal fats or animal or vegetable oils, not produced from unadulterated milk or cream, whereby the said product, manufacture or compound shall be made to resemble butter or cheese, the product of the dairy, or shall have the same in his possession, or shall sell or offer for sale nr have in his possession, any of the said products, which •shall be colored or coated in resemblance of or to resemble butter or cheese, it shall be conclusive evidence of an intent to sell the same for butter or cheese, the product of the dairy” (Id. § 8). Each of the above sections also provided that the violation of its provisions should be a misdemeanor or punishable as therein mentioned. And the statute further provided that any person who should violate any of the provisions of those sections should, in addition to the fines and punishments therein prescribed, forfeit and pay a penalty of five hundred dollars, to be recovered in an action to be prosecuted by the dairy commissioner, in the name of the people of the State of XewYork (Id. § 19). And that such section seven should not apply to any product manufactured or in process of manufacture at the time of the passage of the act (Id. § 21).

This action was brought in the manner so provided, to recoyer the penalty for the alleged violation of the provisions of such statute, in that the defendants had in their possession, with intent to sell, and sold,, as butter—the product of the ■dairy.—that which was not such, but came within the prohibition of the statute. And upon the trial, evidence upon the part of the plaintiffs was given tending to prove that the defendants, on May 25, 1885, had in their possession, .at their store in the city of New York, with intent to sell as butter, the product of the dairy, a product which was not butter made from milk or cream of the same, but had been made out of some animal fat, not produced by unadulterated milk or cream, and which was colored by some coloring matter, whereby it was made to resemble butter, the product of the dairy, and at that time and place the defendants sold and .delivered to a person named, one pound of such product, as and for butter, the product of the dairy. There was a ■conflict in evidence produced by that adduced on the part of the defendants. The plaintiffs had a verdict for the amount of the penalty, upon which judgment was entered January ■4, 1887.

The constitutionality of the statute in question is not now ■an open question. The principles applicable and controlling in that respect were involved in and have been determined by adjudications in support of the statute (People v. Arensberg, 105 N. Y. 123; People v. West, 106 Id. 293; People v. Kibler, Id. 321). And the amendments to the ■sections seven and eight, made by chapter 458 of the Laws •of 1885, and by chapter 577 of the Laws of 1886, did not .alter their provisions essential to the purpose of this section. And therefore such provisions will be deemed to have continued without interruption, notwithstanding the amendments were made by the taking of the sections into the amendatory acts and making them a part of the new statute ■(Ely v. Holton, 15 N. Y. 595 ; People v. Supervisors, 67 Id. 109).

At the close of the evidence the defendants’ counsel moved that the complaint be dismissed because it was not made to appear by evidence that the product in question had not been manufactured or was not in process of manufacture ■on April 30,1885, which was the time when the act, which took effect immediately, was passed. Ho evidence was given: upon that subject. And it is contended that this was a fact-essential to recovery, and that the burden was with the-plaintiffs to establish it by evidence. This provision of section twenty-one is not in the nature of a condition precedent to the right of recovery, in the sense applicable to-that term, but is a saving clause, excepting from the operation of section seven the product not wholly manufactured after the passage of the act. In such case, and in view of" the fact that the party having the article in his possession and dealing in it, may be supposed to have the means, which the plaintiffs have not, of tracing the product to the time of" its manufacture, it is and in this case it was matter of defense- and for the defendants to establish by way of relief from the-prohibitory provisions of the statute (Sheldon v. Clark, 1 John. 513; Potter v. Deyo, 19 Wend. 361; Fleming v.. People, 27 N. Y. 329; Harris v. White, 81 Id. 532; People v. Kibler, 106 Id. 321). The motion was therefore properly denied, and there was no error in the charge as made upon the subject of the burden of proof, which was with the-defendant.

The court was requested and declined to charge the jury that they must be satisfied beyond a reasonable doubt, of the violation by the defendants, before they could find-against them, and charged that they might so find upon a. preponderance of evidence. And exceptions were taken. The proposition uniformly applied in criminal cases, which gives to the accused the benefit of any reasonable doubt,, has, in some of the States, and in others not, been deemed applicable to civil actions in which is involved for' determination that which might be the subject of criminal prosecution.

We have examined the numerous reported cases of the-several States and England, and the text books cited by counsel, and some other cases, upon this question, and think, that in -civil actions the rule that the preponderance of evidence is sufficient to warrant the finding of the fact in which» is involved the charge of such character, has the support of the better reason. This question was well considered at the General Term, and it is deemed unnecessary to here specifically refer to the many cases on the subject. In this State there are but few reported cases -in which the question was considered. In Woodbeck v. Keller (6 Cow. 118), which was an action of slander, upon the charge of perjury, which the defendant sought to justify, and the court there said that the evidence must be the same as required to convict a defendant on an indictment for perjury, that there must be either evidence of two witnesses, or of one witness corroborated by material and independent circumstances, to establish the fact. And while there indicating and substantially declaring the doctrine' contended for by defendants’ counsel,, the question did not necessarily arise in that case to the extent to require the determination whether or not the fact-must be established beyond a reasonable doubt. And in Clark v. Dibble (16 Wend. 601) and Hopkins v. Smith (3 Barb. 599) the court was content with the citation of the: Woodbeck case, on that proposition. The judicial declaration of that doctrine in England was followed by the courts,, in some cases in this country. This remark is more applicable to the earlier than to more recent cases. In the latex-cases where the question has arisen, the rule in that respect applicable to criminal cases had not been applied to civil actions in this State. In Johnson ». Agricultural Insurance Co. (25 Hun, 251) it was held that the px-eponderance of evidence was sufficient to support the defense that the fii-e which caxxsed the injury to the insui’ed property, the subject of the action upon the policy, was set by the fraudulent act of the plaintiff. In citing that case in Seybolt v. N. Y., L. E. & W. R. R. Co. (95 N. Y. 562, 569) the court did not express any opinion upon the question now under consideration. But in N. Y. and Brooklyn Ferry Co. v. Moore (102 N. Y. 667, fully reported in 18 Abb. N. C. 106) the court said : “ There is no rule of law which requires the plaintiff in a civil action, when a jxxdgment against the defendant may establish his guilt of a crime, to prove his case with the same certainty which is required in criminal prosecutions. Xothing more is required in such cases than a just preponderance of evidence, always giving the defendant the benefit of the presumption of innocence.”. The rule so stated is the proper one applicable to the measure of evidence in civil actions, and such seems to be the weight of authority. (See cases collected in note to Sprague v. Dodge, 95 Am. Dec. 525.) And there is no, apparent reason for making any distinction in that respect in behalf of a defendant in an action for a penalty, in which the people are the party plaintiff. It is no less a civil action because so brought. The purpose of the action is not the punishment of the defendant in the sense legitimately applicable to the term, but such action is brought to recover the penalty as a fixed sum by way of indemnity to the public for the injury suffered by reason of the violation of the statute. The effect of the recovery is merely to charge the defendant with pecuniary liability, while a criminal prosecution is had for the purpose of punishment of the accused. And the consequence of conviction may be more serious to him, for the reason, if for no other, that it is deemed an imputation affecting his moral standing in a degree dependent more or less upon the nature of the crime. There is, therefore, some apparent reason for the application, to criminal cases, of the rule which continues the burden of proof on the prosecution throughout the trial and requires that the evidence be such as to overcome all reasonable doubt of the guilt, to justify conviction.

Only one other question was presented on the part of the defendants, and that arose upon motion made at the opening of the trial, for direction that the plaintiff separate the allegations charging possession of the prohibited article, and the sale of it, so as to present them as separate and distinct causes of action ; and that the plaintiff be required to elect, upon which one of such causes he would rely in the action ; also to direct a separation of the cause of action based upon the provisions of section seven, from that within those of section eight of the statute. Whatever reasons may have been urged for or against the direction asked for, the most that can well be claimed on the part of the defendants is that such motions then made were addressed to the discretion of the trial court (Roberts v. Leslie, 14 J. & S. 76). That is not re viewable here.

The judgment should be affirmed.

All the judges concurred.

Note on the Distinction Between Civil and Criminal Oases.

A statute abolishing the common-law proceeding by quo warranto and authorizing an action to be brought in cases in which that remedy was applicable, makes the proceeding a-civil action for the enforcement of a civil right, subject to removal from State courts to the courts of the ■United States when other circumstances permit. U. S. Supreme Ct., 1884, Ames d. Kansas, 111 U. S. 449.

A proceeding by mandamus,—here, one to compel the defendant •company to register the transfer of certificates of stock held by the plaintiff,—is a “suit of a civil nature at law” within the meaning of the removal act of March 3, 1875, and, upon proper application, may be transferred to the circuit court. 8th Circ. (Kan.), 1879, Washington Improvement Co. v. Kansas Pacific Ry. Co., 5 Bill. 489.

For the definition of “ a suit of a civil nature ” under the removal act, see, further, Claffiin v. Robbins, 1 Flippin, 603.

Under a statute imposing a penalty upon certain corporations, one-half to go to the imformer and one-half to the public school fund (Ga. Act, Feb. 28, 1876), an action at law, for the benefit of the informer, and not an indictment, is the proper remedy to recover the share of the informer. But under a section of the same statute, imposing a fine, and not directing that it shall be paid to the informer, or otherwise than to the fines and forfeitures fund, an indictment is the proper remedy. McDaniel v. Gate City Gas Light Co. (Geo. 1887), 3 Southeastern Pep. 693.

Criminal cases are those which involve a wrong or injury done to the republic for the punishment of which the offender is prosecuted in the name of the whole people. Grimball v. Ross (Geo.) T. U. P. Charlton, 175.

Prosecutions for Violations of a license law are not criminal cases in the sense of the term as used in the Georgia constitution, which provides that the superior courts shall have exclusive jurisdiction in all ■criminal cases, except those specified. Floyd v. Commissioners of Eatonton, 14 Ga. 354.

Criminal cases includes prosecutions for all offences not crimes or misdemeanors, but in the nature of crimes, and which are punished, not by indictment, but by' forfeitures and penalties. It includes all qui tarn actions, prosecutions for bastardy, information in the nature of a quo warranto, and suits for the violation of ordinances. Wiggins. v. City of Chicago, 68 Ill. 372; compare Woodward v. Squires, 39 Iowa, 435.

A statute declaring fees of court officers in criminal cases chargeable' to the county, does not include prosecutions founded upon city ordinances and conducted in tribunals of the municipality. People ex rel. Mixer v. Supervisors of Manistee, 26 Mich. 422.

Criminal cases, in the Massachusetts statute, allowing peremptory challenges of jurors, includes a proceeding under a claim for liquors, seized as kept with intent to sell unlawfully. Commonwealth v. Intoxicating Liquors, 115 Mass. 142.

The difference between crimes and civil injuries is not to be sought, in a supposed difference between their tendencies, but in the difference between the modes in which they are respectively pursued, or wherein the sanction is applied in the two cases. An offence which is-pursued at the discretion of the injured party, or his representative, is a civil injury. An offence which is pursued by the sovereign, or by the subordinate of the sovereign, is a crime. Austin Jurisprudence, Git. XVII.

Bishop (Crim. Law, § 32) says: “In the present state of the-

authorities we may hesitate to say, that in no case is anything deemed a crime unless pursuable in the name of the State, or, in England, of the sovereign; but this is the general, if not universal, rule in the United States. Thus, a sale of intoxicating liquor without licence is a criminal offence when a statute prohibits it under a penalty recoverable by indictment ; but otherwise when the proceeding is by action of debt,—a suit on a penal statute being deemed a civil cause.” [Citing Indianapolis v. Fairchild, 1 Ind. 315 ; s. c., Smith (lnd.) 122; Woodward v. Squires, 39 Iowa, 435 ; Keith v. Tuttle, 28 Maine, 326, 335; People v. Hoffman, 3 Mich. 248; United States v. Brown, Deady, 566. See, however, Reed v. Cist, 7 S. & R. 183; Comm’th v. Evans, 13 Id. 426. In Iowa and Michigan, a proceeding against the-place where, liquors are sold has been deemed criminal. Part of Lot v. The State, 1 Iowa, 507; Hibbard v. People, 4 Mich. 125.]

In Belcher v. Johnson, 1 Met. (Mass.) 148, it is held that the proceeding to obtain judgment for a militia line is civil and not criminal, because civil in form. See also Buckwalter v. U. S., 11 S. & R. 193 Rogers v. Alexander, 2 Greene (lo.) 443; Dickinson v. Potter, 4 Day, 340; Houghton v. Havens, 6 Conn. 305 ; People v. Ontario, 4 Denio (N. Y.) 260; Attorney Gen’l v. Radloff, 10 Exch. (Engl.) 84; 26 Eng. L. & Eg. 413; Dyer v. Hunnewell, 12 Mass. 271 ; Winslow v. Anderson, 4 Id. 376.

In State v. Pate, Busbee, 244, it is said that the test is to inquire -whether the proceeding is by indictment or action ; if the former, the cause is criminal ; if the latter, it is civil. That the action (Webster v. People, 14 lll. 365) is in the name of the State does not make the cause criminal. See also J. F. Stephen, Crim. L. 5, and authorities cited by him. Likewise Reg. v. Ferrall, 1 Eng. L. & Eq. 575 ; 4 Cox C. C. (Eng.) 431; 15 (Eng.) Jur. 42 ; Ward n. Bell, 7 Jones (N. C.) 79.

A proceeding to compel sureties of the peace has been held to be criminal. Deloohery v. State, 27 Ind. 521. “Judges frequently, however, speak of things as belonging to the general department of criminal jurisprudence, though the form of the procedure is civil” (see 2 Bish. Marr. & Div. § 233 ;) but we should hardly treat of such things under the title Criminal Law. On the other hand a mandamus is said to be a criminal process to enforce civil rights (State v. Bruce, 1 Tread. 165, 174) yet we do not ordinarily regard it as belonging particularly to the criminal law. The words “ criminal cases ” in the constitution of Georgia, are held not to apply to violations of the local bye laws and police regulations of town and city corporations. Williams v. Augusta, 4 Ga. 509. See, however, Slaughter v. People, 2 Doug. (Mich.) 334, note, People ex rel. Mixer v. Manistee, 26 Mich. 422. But it is otherwise in Illinois. Wiggins v. Chicago, 68 Ill. 372. According to late English cases, a matter is not necessarily criminal merely because an indictment will lie. Bancroft v. Mitchell L. R. 2 Q. B. 549. In Reg. v. Paget, 3 Fost. & F. 29, it was held that an indictment for the obstruction of a highway intended to effect the removal of the nuisance, is in substance a civil, and not a criminal case. The reporter, in a note, says, that “ the distinction ” taken in the most ancient and approved authorities, is not whether the Crown is a party (for so it is in mandamus and guo warranto), but whether the real end or object of the proceeding, is punishment or reparation. See Mirror of Justice, c. 11, § 3 ; 3 Inst, and 1 Reeve Hist. Eng. Law, 32. The mere fact of a fine no more shows that an indictment is a criminal proceeding, than the ancient fine in trespass. Vide Reg n. Chorley, 12 Q. B. 515, new trial allowed on such indictments. And see Reg. v. Russell, 3 E. B. &E. 942, where, semble, the dictum oí Coleridge, J., is the better opinion. And see Rex v. Cotesbach, 1 D. & R. 255. Or civil, merely because the proceeding is at the suit of a private person. Parker v. Green, 9 Cox (Eng.) C. C. 169. That an action is in the name of the State, and its object is the recovery of a penalty, does not make it criminal. State v. Hayden, 32 Wis. 663 ; U. S. v. Brown, Deady, 566. And see State v. Leach, 60 Maine, 58.  