McAllister v. State

• Decision Date: 16 January 1902
• Citation: 50 A. 1046,94 Md. 290
• Parties: McALLISTER v. STATE.
• Court: Maryland Court of Appeals

50 A. 1046

94 Md. 290

McALLISTER v. STATE.

Court of Appeals of Maryland

January 16, 1902

Appeal from criminal court of Baltimore city; Pere L. Wickes, Judge.

Charles E. McAllister was convicted of unlawfully selling oleomargarine made in imitation of butter, and appeals. Reversed.

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

Gans & Haman and W. Calvin Chestnut, for appellant.

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

FOWLER J.

The traverser. Charles E. McAllister, was indicted in the criminal court of Baltimore city for the violation of section 89 of article 27 of the Code, as amended by Act 1900, c. 496. See Supp.Code 1890-1900, p. 33, art. 27, § 88. The indictment alleges that the traverser had in his possession, with intent to sell within this state, and did unlawfully sell to the person therein named, 30 pounds "of a certain article product, and compound made partly out of certain fats, oils and oleaginous substances and compounds thereof not produced directly and wholly from unadulterated milk or cream from the same, which said article," etc., "was then and there in imitation and semblance of yellow butter produced from pure and unadulterated milk and cream from the same." To this indictment the traverser pleaded two special pleas, but we were informed at the hearing by his counsel that they would rely only upon the second. These two pleas are identical with the exception that the seventh paragraph of the second plea, in addition to the facts set forth in the seventh paragraph of the first plea, alleges that the oleomargarine in this case was not only a pure article of commerce of that name defined in the act of congress of August 2, 1886, but that "the said article was in imitation and semblance of yellow butter produced from pure unadulterated milk and cream of the same." To both of these pleas the state demurred. Following the decision of this court in the case of Fox v. State, 89 Md. 381, 43 A. 775, 73 Am.St.Rep. 193, the learned judge below sustained the demurrer.

1. In the case just cited there were several counts in the indictment, and the special plea there held bad, although substantially like the one we are now considering, was pleaded to the whole indictment, and to each count thereof, and we held that it was bad because it did not, as it professed to do, answer the whole indictment. Page 389, 89 Md., and page 778, 43 A. We further said that, "In addition to this objection, the plea amounts to the general issue, and is bad for this reason also." Upon a more careful examination we are satisfied that while the plea in the Fox Case, 89 Md., 43 Atl., 73 Am.St.Rep., was clearly liable to the first objection, and the demurrer to it was properly sustained, yet it is not open to the objection that it amounts to the general issue, for the reason that it did not deny, but admitted, the facts alleged in the indictment, and avoided their legal effect by further alleging that the oleomargarine there in question was offered for sale in the original package, and that it was an article of commerce recognized by the act of congress of August 2, 1886. Thus the plea gives color to and admits the facts alleged. It does not follow that the plea is bad because the facts thus set up in avoidance may be proved under the general issue. Poe, Pl. & Prac. § 641; Keedy v. Long, 71 Md. 385, 18 A. 704, 5 L.R.A. 759. In delivering the opinion of the court in the case just cited the present chief judge said: "The general issue is a denial of the whole substance of the declaration, and puts upon the plaintiff the necessity of establishing all the essential allegations in the narr. But a plea which gives express or implied color to the plaintiff's statement, admits that statement to be true, but makes defense by setting up new matter in avoidance, can never be said to amount to the general issue, for the obvious reason that the element of denial is absent." The special plea in the case at bar is the same as that considered in Fox v. State, and it follows from what we have said that it is not liable to the objection, viz., that it amounts to the general issue; and hence the demurrer should have been overruled. While the question thus presented by the demurrer to the plea is not important in this case, because the facts set forth therein are contained in the traverser's offer of proof which is included in the bill of exceptions, by which it appears the same question was presented as if he had been allowed to plead, yet counsel on both sides united in the request that we should pass upon the validity at the plea, because, as a matter of practice, it is more convenient, and consumes less time, to set up defenses by special plea than to call witnesses, or to try the case upon an agreed statement of facts.

2. We will now briefly consider the main question presented by the record. The special pleas having been held bad by the learned judge below, the traverser offered to prove under the general issue the facts embodied in his special pleas, but the state objected, and, its objection having been sustained, the verdict and judgment were against him. From this judgment the traverser has appealed. The facts, or those which are material to be here stated, which were embodied in the special pleas, and set forth in the traverser's offer are as follows: The oleomargarine which was in the possession of the traverser was not manufactured in this state, but in Chicago, and was sent to the traverser in an original package, conforming in every respect to the act of congress of August 2, 1886, and was retained by him in said original package, unbroken, until it was seized and carried away from his premises by an agent of the Butter Dealers' Association of Baltimore. It further appears that the oleomargarine was a pure article of commerce, as defined by the act of congress above mentioned, and that it was the product of certain fats, oils, etc., not produced wholly from milk or cream, and contained, among other things, a coloring matter known as "annotto," and that it was in imitation and semblance of yellow butter; but said article was not kept in the possession of the traverser for sale as butter, or offered to any one for sale as butter, and the fact that said article was not butter was made known by traverser to said agent when he seized it; and that said oleomargarine is recognized by said act of congress as an article of commerce. The question,...