Commonwealth v. McDermott

• Court: Pennsylvania Superior Court
• Writing for the Court: MORRISON, J.
• Citation: Commonwealth v. McDermott, 37 Pa.Super. 1 (Pa. Super. Ct. 1908)
• Decision Date: 15 July 1908
• Docket Number: 203-1908
• Parties: Commonwealth v. McDermott, Appellant (No. 1)

37 Pa.Super. 1

Commonwealth v. McDermott, Appellant (No. 1)

No. 203-1908

Superior Court of Pennsylvania

July 15, 1908

Argued April 21, 1906

Appeal by defendant, from judgment of Q.S. Washington Co.-1908, No 159, on verdict of guilty in case of Commonwealth v. M. M McDermott.

Indictment for violating the oleomargarine Act of May 29, 1901, P. L 327.

The opinion of the Superior Court states the case.

The defendant moved to quash the indictment on the ground that the act of 1901, was unconstitutional, and on the ground that the disjunctive " or" had been used in one count between the words oleomargarine and butterine.

The court admitted under objection and exception evidence of sales made on January 25, 1908, although the indictment charged sales on December 11, 1907.

The court admitted under exception the record of a former conviction of a violation of the act.

The court imposed as a sentence penalties imposed for a second violation of the act.

Verdict of guilty, upon which judgment of sentence was passed.

Errors assigned were various rulings of the court as above.

Owen C. Underwood, of Underwood & Meloy, with him Edwin Sutherland, for appellant, cited as to the meaning of the word " conviction:" Smith v. Com., 14 S. & R. 69; Rauch v. Com., 78 Pa. 490; People v. Butler, 3 Cowen (N.Y.), 347.

Alex. M. Templeton and Cyrus Gordon, with them C. L. V. Acheson, district attorney, for appellee, cited as to the word " conviction:" Wright v. Donaldson, 158 Pa. 88; York County v. Dalhousen, 45 Pa. 372; Macdonald v. Schroeder, 28 Pa.Super. 128.

Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.

OPINION

MORRISON, J.

The defendant was indicted and convicted in the court of quarter sessions for a second offense in violating the provisions of the Act of May 29, 1901, P. L. 327, entitled: " An act to prohibit the manufacture and sale of oleomargarine, butterine, and other similar products, when colored in imitation of yellow butter; to provide for license fees to be paid by manufacturers, wholesale and retail dealers, and by proprietors of hotels, restaurants, dining rooms and boarding houses; for the manufacture or sale of oleomargarine, butterine, or other similar products, not colored in imitation of yellow butter; and to regulate the manufacture and sale of oleomargarine, butterine, or other similar products, not colored in imitation of yellow butter; and prevent and punish fraud and deception in such manufacture and sale as an imitation butter; and to prescribe penalties and punishment for violations of this act, and the means and the method of procedure for its enforcement, and regulate certain matters of evidence in such procedure."

The learned counsel for the appellant state the questions involved thus:

1. " Is the Act of May 29, 1901, P. L. 327, unconstitutional by reason of the fact that it conflicts with Article 14, section 1, of the Amendments to the Constitution of the United States, which provides in part, 'nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.'"

2. " Is the judgment and sentence of the court a necessary part of a conviction?"

3. " Can a court of Quarter Sessions make its sentence and judgment refer back and have the same force as if entered on the day and at the time of the verdict of the jury?"

4. " If one count of an indictment should have been quashed, and was not, by the court below, and testimony was admitted

substantiating that particular count, is not the jury unlawfully prejudiced thereby against the defendant?"

We may well dispose of the first proposition by saying that the supreme court of the United States, the Supreme Court of Pennsylvania, and the Superior Court of Pennsylvania have many times held that an act of assembly similar to the one in question does not violate the constitution of the United States nor of the state of Pennsylvania. Moreover, some of the decisions expressly decide that the very act of May 29, 1901, is not unconstitutional. As we understand the argument of the learned counsel they are well aware of these decisions but seem to desire to have us enter into a discussion with them as to the correctness of the decisions of the several courts above referred to. This we do not propose to do. It is sufficient for us, as it ought to be for the counsel, to ascertain from the adjudicated cases, what the law is on this subject. It is very clear, we think, that the act of May 29, 1901, is an act intended, not to prohibit the sale of oleomargarine or butterine, but to regulate the sale of the same and to prevent fraud upon the consumers by prohibiting the coloring of the article so that it will resemble yellow butter produced from pure, unadulterated milk, or cream of the same, with or without coloring matter.

In their argument, the learned counsel criticize the opinion and judgment in the case of Commonwealth v. Mellet, 27 Pa.Super. 41. We have considered their argument and have re-examined that case, and we are not convinced that the opinion and judgment therein needs any alteration or vindication. We are entirely satisfied to follow it in the present case.

The suitor who undertakes to have a law declared unconstitutional takes upon himself the burden of establishing that it is so beyond all reasonable doubt: Pennsylvania Railroad Co. v. Riblet, 66 Pa. 164; Commonwealth ex rel. Wolfe v. Butler, 99 Pa. 535; Commonwealth v. Moir, 199 Pa. 534, 49 A. 351. The act of 1901, under consideration, and the earlier acts of 1885 and 1889 which the former act supersedes, have been declared over and over again not to be in conflict, as police regulations, with the state constitution nor with the commerce clause of the national constitution. In Commonwealth v. McCann, 14 Pa.Super. 221, we held the Act of May 5, 1899, P. L. 241, regulating the sale of oleomargarine, constitutional, referring to Commonwealth v. Vandyke, 13 Pa.Super. 484. And we further held that such regulation does not conflict with the commerce clause of the national constitution, and it cannot be declared to be an infringement of the rights of the citizen secured by sec. 1, art. 1, of the state constitution, nor by the fourteenth amendment of the national constitution. See also Commonwealth v. Diefenbacher, 14 Pa.Super. 264. In Commonwealth v. Caulfield, 211 Pa. 644, 61 A. 243, the Supreme Court, in affirming this court in 27 Pa.Super. 279, expressly held the Act of May 29, 1901, P. L. 327, constitutional, citing the case of Plumley v. Massachusetts, 155 U.S. 461, 39 L.Ed. 223, 15 S.Ct. 154; see Powell v. Pennsylvania, 127 U.S. 678, 32 L.Ed. 253, 8 S.Ct. 992, affirming the Supreme Court of Pennsylvania; see also Commonwealth v. Paul, 148 Pa. 559, 24 A. 78; Commonwealth v. Paul, 170 Pa. 284, 33 A. 82; Commonwealth v. Schollenberger, 156 Pa. 201, 27 A. 30; and see the same case, 171 U.S. 1. While the latter decision, in part, reverses the Supreme Court of Pennsylvania yet it in no wise denies the power of the state legislature to regulate the sale of an article like oleomargarine by a statute like that of 1901. We close the citation of authorities upon this branch of the case, which might be continued, but it is unnecessary to cite additional authorities, as we are all of the opinion that the act of 1901, is constitutional.

The next question raised is whether it is necessary to have the judgment and sentence of the court pronounced in order to establish a conviction within the meaning of the seventh section of the act of May 29, 1901 (see p. 331), " and upon conviction thereof, shall be punished for the first offense by a fine of not less than $ 100, nor more than $ 500, or by imprisonment in the county jail for not more than three months, or both, at the discretion of the court; and upon conviction of any subsequent offense, shall be punished by a fine of not less than $ 500, nor more than $ 1,000, and by imprisonment in the county jail for not less than six months nor more than twelve months." The question here is whether a verdict of guilty, without judgment or sentence, amounts to a conviction within the meaning of the law. It must be conceded that there are cases which seem to hold that to constitute a conviction requires the judgment of the court upon a plea of guilty or a verdict of guilty after trial. But we are inclined to the opinion that under the present statute the conviction spoken of is accomplished by verdict of guilty upon an indictment; that the popular and ordinary significance of the word " conviction" is met by a verdict of guilty or a plea of guilty seems to us beyond question. In our opinion where a defendant has been indicted and tried under the provisions of the act of 1901, and found guilty by a jury and he commits a subsequent offense and is tried and found guilty thereof, he may be punished for the subsequent offense as provided in the last clause of section 7 of the act. Bouviers' Law Dictionary defines conviction to be in practice: " That legal proceeding of record which ascertains the guilt of the party and upon which the sentence or judgment is founded." " Finding a person guilty by verdict of a jury:" 1 Bishop's Crim. Law, sec. 223. " Conviction must precede judgment or sentence:" 1 Caines 72; 34 Me. 594; 16 Ark. 601; " but is not necessarily or always followed by it:" 14 Pick. (Mass.) 86; 17 Pick. (Mass.) 295; 8 Wend. (N.Y.) 203. Where there is a verdict of guilty, a motion for a new trial heard and refused, and a suspension of sentence, this is a discharge of the defendant from his recognizance and an end of the case. The record of his conviction and the action of the court could be pleaded in bar of a second p...