Commonwealth v. Byrnes

158 Mass. 172 | Mass. | 1893

Barker, J.

The defendant had for sale in his provision store oleomargarine colored in imitation of yellow butter. It was in a closed and covered refrigerator and could not be seen by customers, but there was in the store a sign to the effect that oleomargarine was sold there. Upon the occasion to which the complaint relates none of the substance was sold or produced to view, except that a sample was taken from the refrigerator by an agent of an official inspector. The ease turns upon the meaning of the words “ expose for sale ” in the statute under which the complaint was drawn. St. 1891, c. 58, § 1. The purpose of the statute is to prevent deception in the manufacture and sale of imitation butter, and the statute provides that no person “ shall render or manufacture, sell, offer for sale, expose for sale, or have in his possession with intent to sell ” certain articles. The phrase to be construed is perhaps susceptible of more than one meaning. Whenever goods are placed for convenient delivery upon expected sales, they are put out and in one sense exposed for sale, whether visible to customers or not. But in our opinion the words are not so used in the statute under consideration. The prohibited articles are designed and adapted to deceive the eye, and, because their appearance is likely to induce those who see them to buy them as the genuine butter of which they are in imitation, there is special reason for prohibiting their exposure to view. The language is so full that it is not necessary to give it a strained construction in order to make the statute effective. Offering to sell and having in possession with intent to sell are likewise prohibited in the same clause and under the same penalty, so that it is easy for the pleader to select language which describes the offence with reasonable accuracy. Similar words are used in the statutes relating to milk and to intoxicating liquors, but as in such cases the charge of exposing for sale is uniformly joined with that of illegal keeping, and as such a com plaint charges but one offence and is supported by proof of either act, (Commonwealth v. Nichols, 10 Allen, 199, and Commonwealth v. Dolan, 121 Mass. 374,) it has not been necessary for this court to construe the phrase. Some of the decisions, however, intimate more or less clearly that in the statutes concerning liquors it means “ expose to view.” Commonwealth v. McCue, 121 Mass. 358. Commonwealth v. Atkins, 136 Mass. 160.

Under the English statute (50 & 51 Vict. c. 29, § 4) it has been held that margarine kept for sale upon the counter of a shop, but behind a screen hiding it. from the view of customers, is not exposed for sale; Crane v. Lawrence, 25 Q. B. D. 152; and that parcels of margarine placed upon a counter or shelf, in view of customers, are exposed for sale, although so wrapped in paper that the margarine cannot be seen. Wheat v. Brown, [1892] 1 Q. B. 418.

Whether, if the defendant had so kept the prohibited article in closed tubs or in paper that the packages were visible as articles of merchandise on sale in his store, although the oleomargarine itself could not be seen, he would thereby have exposed it for sale, we do not decide. The contention that the article was not prohibited because it was in imitation of artificially colored butter, as well as of genuine butter at its best, needs no consideration.

It was immaterial that the sample was obtained without legal authority and by a trespass, if such was the case, which we have no occasion to consider. Commonwealth v. Henderson, 140 Mass. 303; Commonwealth v. Tibbetts, 357 Mass. 519.

Verdict set aside.