
    SUPREME COURT—APP. DIVISION—SECOND DEPARTMENT,
    Oct. 21, 1914.
    THE PEOPLE v. PHILIP BRUNO.
    (164 App. Div. 32.)
    COUNTEBEEITING TRADE MARK —PENAL LAW § 2354—MUST BE CRIMINAL Intent.
    One cannot be convicted of a violation of subdivision 1 of section 2354 of the Penal Law, which makes it a misdemeanor to counterfeit a trade mark, on mere proof that he printed counterfeits ; it must be shown that the printing was done with a fraudulent or criminal intent upon his part.
    Appeal by the defendant, Philip Bruno, from a judgment of the Court of Special Sessions of the City of New York, Borough of Brooklyn, Part Two, rendered against him on the 10th day of March, 1914, convicting him of the crime of falsely making and counterfeiting a trade mark.
    
      Ralph Underhill, for the appellant.
    
      Harry G. Anderson, Assistant District Attorney [James C. Cropsey, District Attorney, with him on the brief], for the respondent.
    
      
       See Note, Vol. 30, 25.
    
   Jenks, P. J.:

Unless the witness Grundig was revealed unquestionably as an accomplice, the proof was sufficient to convict the defendant of a violation of the Trade Mark Law. Grundig, who had been a printer for five years, carried on that business in a small way at his own place in the borough of Brooklyn. He testifies that the defendant brought certain plates to his place and ordered a large number of ifnpressions, which were made, were delivered and were paid for. There is nothing suspicious in this relation of Grundig and the defendant, and there is no indication that the work was done save as any other work given to Grundig. Moreover, Grundig did not attempt to conceal or suppress anything that he did when an investigation was made. The only possible suspicion as to a printer’s guilty complicity might arise from the fact that the impressions represented the label of a liquor made by very well-known manufacturers. If the plates had been taken to a printer of large business, who naturally might be familiar with the repute of the manufacturers, the fact that he executed such work at the behest of a stranger without inquiry or investigation might well make against him; but Grundig reveals himself on the stand as exactly the kind of man that should be chosen, for his ignorance and not for his cunning, to do such fraudulent work. I think that Grundig did not himself violate the law merely by the printing of the impressions, •for, in my opinion, to falsely make or counterfeit, as used in subdivision 1 of section 2354 of the Penal Law, implies that the act must be done with a fraudulent or a criminal intent. (United States v. King, 5 McLean, 208; 26 Fed. Cas. 787; United States v. Otey, 31 Fed. Rep. 68. See, too, Regina v. Bannen, per Tindal, C. J., 2 Mood. 309, 312, cited 1 Russ. Cr. [7th ed.] 367.)

The judgment óf conviction should be affirmed.

Thomas, Rich, Stapleton and Putnam, JJ., concurred.

Judgment of conviction of the Court of Special Sessions affirmed.  