Cook v. State

• Decision Date: 28 May 1896
• Citation: 20 So. 360,110 Ala. 40
• Parties: COOK v. STATE.
• Court: Alabama Supreme Court

20 So. 360

110 Ala. 40

COOK v. STATE.

Supreme Court of Alabama

May 28, 1896

Appeal from city court of Montgomery; John G. Winter, Judge.

Eason T. Cook was convicted of selling oleomargarine in violation of law, and appeals. Affirmed.

On the trial, William Owen testified, for the state, that a few hours before he went before the grand jury as a witness in this case he went to the store of defendant in the city of Montgomery, and asked him to sell him a pound of oleomargarine; that defendant said he had real butter, but would sell him a pound package of the oleomargarine, which was stamped with the word "Oleomargarine"; that the oleomargarine was of the color of yellow butter; and that witness did not know, of his own knowledge, that the article sold to him was oleomargarine, and he could not say whether it was colored by the introduction of coloring matter or other ingredients, which caused it to look like butter. Peter B. Mastin testified to the same facts as to the purchase of the oleomargarine, and he further testified that he had been for many years engaged in the making and selling of butter and that the oleomargarine bought by Owen from defendant was the color of yellow butter. The state offered in evidence the word "Oleomargarine" and its definition, as contained in Webster's International Dictionary, and also other words, as contained in said dictionary, pertaining to the definition of oleomargarine. Upon the introduction of these words, as contained in said dictionary, the defendant objected, on the ground that it was incompetent, that the book was not authority on the subject, and that it failed to state the natural color of oleomargarine. The court overruled this objection, and defendant excepted. The time and the venue were proved as laid in the indictment. This being all the evidence introduced on the trial of the case, the court upon the request of the solicitor, gave to the jury the following written charge: "If you believe the evidence beyond a reasonable doubt, you will find the defendant guilty." Defendant excepted.

Sayre &amp Pearson, for appellant.

Wm. C Fitts, Atty. Gen., for the State.

COLEMAN J.

The defendant was indicted and convicted for a violation of a statute entitled "An act to prevent deception in the manufacture, and sale of imitation butter." Acts 1894-95, p. 777. There are some clerical errors in the first section of the act as published, which should be corrected. The act, as adopted and enrolled, reads as follows:

"Section 1. Be it enacted by the general assembly of Alabama, that no person by himself, or his agents, or servants shall render or manufacture, sell, offer for sale, expose for sale, or have in his possession with intent to sell or serve to persons, guests, boarders, or inmates; in any hotel, eating house, restaurant, dining car, or boarding house, or public or private hospital, school, or penal institution, any article, product or compound, made wholly, or partly out of any fat, oil, or oleaginous substance, or compound thereof not produced directly, and at the time of manufacture, from unadulterated milk or cream from the same which shall be in imitation of yellow butter produced from pure unadulterated milk or cream from the same: Provided, that nothing in this act shall be construed to prohibit the manufacture, or sale of oleomargarine in such manner as will advise the consumer of its real character free from coloration or ingredient that causes it to look like butter by having it stamped with its true name."

Several grounds of demurrer were interposed to the first and second counts of the indictment, and to the indictment as a whole which were overruled by the court, which rulings are assigned as error. It is contended that the statute only prohibits the sale or offer to sell "in any hotel, eating house," etc., and this assignment is based upon the punctuation indicated by the semicolon made after the words "or inmates." Punctuation marks may, in proper cases, be regarded as aids in arriving at the correct...