People v. Arenberg

• Decision Date: 29 October 1886
• Parties: PEOPLE v. ARENBERG.
• Court: New York Court of Appeals Court of Appeals

103 N.Y. 388

8 N.E. 736

PEOPLE

v.ARENBERG.

Court of Appeals of New York.

October 29, 1886.

Appeal from Second department.

This was an indictment, under section 7 of the New York act of 1885, for the sale of oleomargarine. The jury found a verdict of conviction, and defendant appealed. The facts are sufficiently stated in the opinion.

EARL and ANDREWS, JJ., dissenting.

F. R. Coudert and W. H. Peckham, for appellant, Arenberg.

Edward B. Thomas and W. P. Quinn, for the People.

FINCH, J.

This record discloses an error in the charge of the trial judge to the jury. He submitted to them the bare question whether the defendant had manufactured or sold oleomargarine not made from milk or cream, and charged that if he did he was guilty under the law. The language of the court was especially clear and decisive. The jury were told: ‘If you believe that the defendant did sell this article called oleomargarine, and that it was not a production of pure, unadulterated milk, or cream of the same, then he committed an offense under the law. The simple question for you to decide is, did this defendant or did he not sell an article known as oleomargarine, and was that article made of pure, unadulterated milk and cream? If he did so sell that article, and if it was not so made, he is guilty of a violation of this statute.’

It would be difficult to make the direction plainer. But the guilt of the prisoner did not and could not lie in the simple manufacture and sale of the article, and depended upon the further inquiry whether it was manufactured in imitation or semblance of butter; whether, by the use of ingredients not necessary or essential to the article itself, it was sought to accomplish such imitation or resemblance. The proof showed that when oleomargarine was put upon the market in its normal condition, and before the addition of ingredients designed to modify its natural taste taste and color, it was of a pearlwhite hue, resembling tallow, but that coloring matter was sometimes added. It was to prevent such or similar imitations that the act of 1885 was framed. Section 7 forbids two things. The manufacture, not from milk or cream, of an article or product in imitation or semblance of butter, or designed to take the place of butter. The latter clause is ineffectual, as we held in the Marx Case, 99 N. Y. 377; S. C. 2 N. E. Rep. 29. It was under the first alone that the defendant could be convicted, and yet the charge of the court ignored this element of offense entirely, and missed the precise point of the accusation. Whether the oleomargarine manufactured by the defendant was or was not an imitation or semblance of butter became the material inquiry, but was withheld from the jury, and they were instructed to convict upon proof of the manufacture and sale of the article known as oleomargarine. Practically that was a ruling, as matter of law, that the article thus known is an imitation of butter, whereas it may or may not be; and the question whether, in a given case, it is or is not is one for the jury. A sample of the product manufactured by the defendant was produced before them, and open to their observation. The vital point of the alleged crime is the manufacture and sale of an article which is an imitation and semblance of butter, and so is calculated to deceive, and indicates a deceptive purpose, immediate or ultimate; and that is a question of fact which the court was not authorized to determine as a matter of law, but, upon the evidence produced, should have submitted it to the jury.

It is said that the imitation was admitted, and the case tried on that assumption. I am unable to agree in that proposition. I do not think the imitation was conceded, and a distinct exception was taken to the charge which ignored the fact of imitation as essential to the crime, and argued before us on the appeal.

For this error, without considering the constitutional question, the judgment should be reversed, and a new trial ordered.

RUGER, C. J., and RAPALLO and DANFORTH, JJ., concur.

ANDREWS, J., dissents on the ground that it was proved and assumed on the trial that coloring matter had been added to the substance called ‘oleomargarine’ to give it a yellow color resembling natural butter, and that the sale of oleomargarine, so colored, constitutes an offense under the act, within the competency of the legislature to declare.

MILLER, J., not voting.

EARL, J., ( dissenting.)

The defendant was indicted and convicted for selling oleomargarine at the city of Brooklyn, in this state, in violation of section 7 of chapter 183 of the Laws of 1885, as amended by chapter 458 of the same year. Upon the trial, a witness, who described himself as a state dairy expert, testified as follows: That the defendant was engaged in the business of manufacturing oleomargarine; that on the sixteenth day of July, 1885, he bought of him personally three tubs of oleomargarine; that he asked for oleomargarine, and bought it as such; and that he subsequently delivered a sample of it to Mr. Gladding, who was also called as a witness, and testified that he was a chemist; that the sample delivered to him by the previous witness was of a yellow color, resembling butter; that it was composed of animal fat, or animal or vegetable oil, not produced from unadulterated cream; that he did not know the particular substance used to give it color, but that a coloring substance had been used; that he was acquainted with oleomargarine and its ingredients, and that in its pure manufacture it has a dull, pearl-white color, resembling tallow. On his cross-examination he testified that the article was probably made of tallow or of lard, or of a mixture of both, and that it was composed of the same things as are found in milk, except that in milk they are combined with other things and in different proportions; that it contained all the ingredients found in pure butter, but in different proportions, and differently combined. Another witness, a chemist, called on the part of the people, gave similar evidence.

When the defendant began to call his witnesses, the trial judge announced that he would hold that any affirmative testimony on his part as to the qualities of oleomargarine or its constituent parts was inadmissible, unless he proposed to show that it was made from pure, unadulterated milk or cream. The defendant called an expert chemist, and asked him, ‘What is the difference between oleomargarine and butter, if any?’ The plaintiff objected to this, and, on the admission of defendant's counsel that he did not pretend that the article sold by the defendant was made of unadulterated milk or cream, the judge again stated that he should exclude all affirmative testimony on the part of the defendant as to the constituents of the oleomargarine, as to its manufacture and healthfulness or otherwise, and he excluded the question. The witness was then asked to look at the sample of oleomargarine produced by the plaintiffs and state ‘whether it is not butter.’ This was objected to by the plaintiffs, and excluded. The following questions were then put to the same witness, and all, on the objection of plaintiff's counsel, were excluded: ‘Look at that, [Gladding's analysis of the specimen of oleomargarine,] and state whether or not the ingredients which go to make up that compound are not, in themselves separately, and in the compound, wholesome articles of food.’ ‘State whether an article made of these separate ingredients would or would not constitute a healthful and cleanly article of food.’ ‘You have stated that the article we have spoken of as oleomargarine had been invented by a Frenchman in 1870 or 1871. Will you state, if you please, whether, since that time, this article has been used extensively all over the world as an article of food?’ ‘Will you state whether there is or is not in this composition anything which is not found in butter?’ ‘Is there anything in butter which is not found in this article?’ The same questions were also put to Prof. Chandler, an expert chemist, and excluded. The defendant was sworn as a witness on his own behalf, and testified that he had been in the oleomargarine business for about five years; that there was a large sign, with the word ‘Oleomargarine’ thereon, on the outside of his place of business, and that he had there machinery and property employed in that business. He was then asked the following questions, which, on the objection of plaintiff's counsel, were excluded: ‘What was the value of that machinery and property on the thirtieth day of April, 1885?’ ‘What would be the value of that machinery and property in case you were not allowed to use it in the manufacture of oleomargarine?’ He then offered to prove that the article in question is ‘a form of butter made otherwise than by the natural process.’ Plaintiff's counsel objected to this on the ground that ‘the offer is not to prove that the product is made from substances other than those prohibited by section 7 of the statute,’ and the evidence was excluded.

The counsel for the defendant requested the judge to direct the jury to acquit him on the ground that the statute under which he was indicted was unconstitutional, and also on the ground that the statute was aimed only at fraud, and that here there was no evidence of any fraud. The judge denied the request, and then charged the jury ‘that this is a valid and constitutional law; that, if you believe that the defendant did sell this article called ‘oleomargarine,’ and that it was not a production of pure, unadulterated milk, or cream of the same, then he committed an offense under the law. The simple question for you to decide is, did this defendant or did he not sell an article known as oleomargarine? and was that article made of pure, unadultered milk, or cream of the same? If he did so sell that article, and if it was not so made, he is guilty of the violation of this statute, which I again charge you is a valid and...