Pierce v. State

• Decision Date: 23 June 1885
• Citation: 63 Md. 592
• Parties: RICHARD B. PIERCE v. THE STATE OF MARYLAND.
• Court: Maryland Court of Appeals

63 Md. 592

RICHARD B. PIERCE v. THE STATE OF MARYLAND.

Court of Appeals of Maryland

June 23, 1885

Edward C. Eichelberger, for the appellant.

Charles G. Kerr, State's Attorney for Baltimore City, and Charles B. Roberts, Attorney-General for the appellee.

Robinson J., delivered the opinion of the court.

The Act of 1884, ch. 243, provides that every person who shall manufacture for sale, or who shall offer for sale, any article or substance, known as oleomargarine, shall cause every parcel or package to be stamped in plain Roman letters "Oleomargarine," and that every retailer shall cause every package sold by him to be stamped in the like manner.

Sec. 2 provides that every person who shall sell, or offer to sell, or have in his possession, with intent to sell, the article known as oleomargarine without being stamped as required by sec. 1, and that every retailer who sells a package or parcel, without delivering to the purchaser the package or parcel labelled as required by the first section, shall for each offense forfeit and pay a fine of $100.

Sec. 3 provides that every person who shall sell, or offer, or expose for sale, the article known as oleomargarine without having it stamped or labelled as required by the first section of the Act, shall be guilty of a misdemeanor, and be imprisoned in jail, etc.

So far as selling, or offering for sale, what is known as oleomargarine without having it stamped as such, there is a plain inconsistency and repugnancy between the punishment prescribed by the second and third sections. By sec. 2 the offense is punishable by a fine of $100, and by sec. 3 the same offense is punishable by imprisonment in the county jail. To this extent these two sections must be adjudged invalid, because it is impossible for the court to say under which of these two sections the party is to be punished.

But sec. 3 does not provide a punishment for one who has oleomargarine in his possession, with intent to sell the same, without having it stamped as required by the first section; nor does it provide a punishment for one who sells it at retail without having the package stamped as required by said section. For either one of these offenses a party may be indicted and punished under the 2nd section. This indictment does not, however, charge the traverser with either of these offenses, nor, in fact, with any offense prescribed by the Act. It charges him with having in his...