Fox v. State

• Decision Date: 05 December 1901
• Citation: 50 A. 700,94 Md. 143
• Parties: FOX v. STATE.
• Court: Maryland Court of Appeals

50 A. 700

94 Md. 143

FOX v. STATE.

Court of Appeals of Maryland

December 5, 1901

Appeal from criminal court of Baltimore city; J. Upshur Dennis Judge.

Michael J. Fox was convicted of selling oleomargarine to a person who asked for butter, and appeals. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BOYD, PEARCE, JONES, and SCHMUCKER, JJ.

T.C Ruddell and Wm. C. Smith, for appellant.

Isidor Rayner, Atty.Gen., and Robert M. McLane, for the State.

FOWLER J.

The traverser was indicted under Acts 1900, c. 496, codified as sections 88 and 90 of article 27 of the Code (Supp.1890-1900 pp. 33, 34). The indictment contains two counts, and although the demurrer goes to the whole of it, and to each count thereof, yet no question is seriously made to the first count. It is conceded by the appellant that the first count "is perhaps properly framed." We see no objection to it, and, none having been pointed out, we conclude that, inasmuch as it follows the language of the statute creating the offense, it is free from objection. 1 Bish.Cr.Proc. (4th Ed.) § 612, etc.; Dickhaut v. State, 85 Md. 464, 37 A. 21, 36 L.R.A. 765, 60 Am.St.Rep. 332. But it is insisted that the second count is fatally defective. Section 90, art. 27, of the Code, on which this count is framed, provides that any person who, by himself or his agents, or as the agent of any other person, sells or offers to any person who asks for butter any oleomargarine, with or without coloring matter, shall be guilty of a fraud. The contention is that the indictment should have alleged, but did not so allege, that oleomargarine was "unlawfully and fraudulently" sold. The indictment alleges that the traverser did unlawfully sell, etc., but there is no allegation that the sale was fraudulent as well as unlawful. Without the allegation of fraud, there can, the traverser contends, be no conviction, and that the indictment is fatally defective. This view is based upon the proposition that the statute prohibits only a fraudulent sale, but, in our view, it bears no such construction. The plain language is that whoever sells contrary to the prohibition of the statute shall be guilty of a fraud, and shall be fined $100 for the first offense, and imprisoned three months for each subsequent offense. Hence, whether the dealer knowingly, willfully, and fraudulently sells oleomargarine to one who asks for butter, or makes such sale in ignorance of the fact whether the substance he sells is oleo, butterine, or pure butter, is altogether immaterial. Such a sale the statute pronounces a misdemeanor. In a word, the statute does not provide that whoever fraudulently sells, etc., shall be punished, but whoever sells (without the use of any qualifying adjective whatever) shall be guilty of a fraud. We do not understand, therefore, why we should interpolate the word "fraudulently" into the statute when the legislature has omitted it. But it is insisted that by the settled rules of pleading the indictment must allege that the sale was fraudulent, or made with intent to defraud, etc. The rule, however, in regard to statutory...