Commonwealth v. Caulfield, 27 Pa. Super. 279

Commonwealth v. Caulfield

27 Pa. Super. 279 | Pa. Super. Ct. | 1905

Opinion by

Rice, P. J.,

The sale of oleomargarine, for which the defendant was indicted under the Act of May 29, 1901, P. L. 327, was made in December, 1902. On the trial of the case, which took place in January, 1904, the man who bought it, and the state chemist who analyzed it, were permitted to testify under objection and exception as to its resemblance to yellow butter. One testified that it was quite yellow, and looked like yellow butter, the other, that “ it was distinctly yellow, having the appearance of yellow butter, not a deep orange yellow, but distinctly a yellow appearance like yellow butter.” This was not mere opinion evidence, which could be given only by an expert, but related to a fact which was ascertainable by the mere exercise of the sense of sight possessed by the ordinary person. Nor was it secondary evidence, which could not be given until after the nonproduction of the article for the inspection of the jury was accounted for. The question for the jury to decide was, what was the color of the oleomargarine at the time of the sale, and it is not certain that they could have determined it by a mere inspection a year or more later. For this reason, as well as others that might be suggested, we are unable to agree with the learned counsel for the defendant that a view of the article itself by the jury was the only fair method of determining the question before them. We can conceive of cases where the circumstances might be such that the unexplained nonproduction of the article, like the nonproduction of other evidence which it is to the interest and within the power of a party to produce, would be ground for unfavorable inference against the prosecution. But even in such cases it would be for the jury to say what weight should be attached to the omission in the determination of the question before them. We see no error in the admission of the evidence as to the color of the oleomargarine sold by the defendant or in refusing to give binding instructions in his favor upon the ground that it was not produced at the trial for the inspection of the jury.

The remarks of counsel for the commonwealth addressed to the jury in his closing argument, which are quoted in the fourth assignment, were evidently made in answer to the comments of the defendant’s counsel upon the fact that the prosecution had neither produced the oleomargarine in question, nor ac*283counted for its nonproduction. It was an equally obvious fact that counsel for defendant in cross-examining the commonwealth’s witnesses did not ask them as to its whereabouts, and we are of opinion that the latitude, which counsel rightfully have in arguing to the jury upon the facts' and the conduct of the trial, was not exceeded by calling their attention to it and suggesting to them that the argument based on the nonproduction of the oleomargarine would have had greater force if they had brought out the fact that it was still in existence and could be produced. If it had been the legal duty of the commonwealth to produce it or account for its nonproduction a different question would be presented.

Thfe specific objection urged against the admission in evidence, in rebuttal, of a substance alleged to be white, or yellowish white, oleomargarine is, that there was no proof “ that it was commercial oleomargarine, or oleomargarine, a substitute for butter.” The purpose of the offer was to show that oleomargarine is made and sold, which, as to color, does not resemble yellow butter ; this to rebut the testimony introduced by the defendant upon the same general question. The witness who identified the sample testified that he had had wide experience as a chemist in examining oleomargarine and butterine, extending over a period of twelve years; that he bought the sample in the open market at Pittsburg; that he analyzed it and found it to be oleomargarine. He was unable to state all of the ingredients of which it was composed. If there were a fixed and unvarying formula for the manufacture of oleomargarine, it might be argued, at least with plausibility, that the sample should not have been admitted in evidence without preliminary proof that it contained the ingredients, compounded according to the proportions, and treated in the process of manufacture in the mode, prescribed by the formula. But there is no such formula prescribed by law, nor, as we have pointed out in the case of Commonwealth v. Mellet, ante, p. 41, is there any which is invariably followed by all manufacturers. Hence we cannot say that the court erred in admitting the sample in evidence although the testimony of the witness did not come up to the standard above suggested.

The act is assailed upon the ground that it is in contravention of the constitutional provision that ho bill, except general *284appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in the title. “In determining the unity of the subject, regard must of course be had to the ultimate object to be attained. Details leading to the accomplishment of that object are cognate to the subject of legislation, and therefore form a part thereof: ” Road in Phoenixville, 109 Pa. 44. “The unity of the subject of a statute is to be determined by its paramount purpose rather than by the details through which that purpose is to be accomplished. The subject may have but one object, while the measures necessary for the attainment of that object may necessarily embrace many subordinate subjects, differing in their nature and particular effect, yet all contributing to it, and comprised within the principal subject:” Commonwealth v. Jones, 4 Pa. Superior Ct. 362. Viewing the statute in the light of these principles, which are well settled and sustained by numerous cases, it is impossible to declare that it contains more than one subject within the meaning of the constitution. The title gives ample notice of every provision upon which the validity of this conviction depends; and even if it were to be conceded that it does not give adequate notice of the provisions which are referred to in the defendant’s fifth point (seventh assignment of error), yet it would not necessarily follow that the other provisions are invalid. An entire act is not necessarily unconstitutional because the title fails to give notice of some particular matter contained therein. The general rule has been to sustain the portion of which the title gives notice. This act is clearly within the general rule, not within any recognized exception to it. We, therefore, need not discuss the validity of those provisions referred to in the defendant’s point until a case arises in which they are involved.

The remaining questions raised by the assignments have been discussed by us in the case of Commonwealth v. Mellet, ante, p. 41, in which we herewith file an opinion.

All the assignments of error are overruled, the judgment is affirmed and the record remitted to the court below to the end that the sentence be carried into effect.