20 Pa. Super. 529 | Pa. Super. Ct. | 1902
Opinion by
The defendant was indicted for selling oleomargarine or butterine unlawfully colored in imitation of butter, under Act of May 5, 1899, P. L. 241, which provides as follows : “ That no person, firm or corporate body, by himself, herself or themselves, or by his, her or their agents or servants, shall render or manufacture, sell, ship, consign, offer for sale, expose for sale, or have in his, her or their possession, with intent to sell, any article, product or compound made wholly or partly out of any fat, oil or oleaginous substance, or compound thereof, not produced from unadulterated milk or cream from the same, without the admixture or addition of any fat foreign to the said milk or cream, and which shall be in imitation of yellow butter, produced from pure, unadulterated milk or cream of the same, with or without coloring matter.”
At the conclusion of the evidence the defendant urged that “ under all the evidence in the case the jury must be instructed to find the defendant not guilty; ” this was denied by the court and the jury was instructed as follows : “ I assume that the testimony is just as Mr. Leslie puts it, and, in consideration of the motion in arrest of judgment, I take his testimony to be true; and I am inclined at the present to think that he is guilty. If all that Mr. Leslie says is true, he is guilty in manner and form as indicted.”
The undisputed facts of the case as testified to by Mr. Leslie, the defendant, are as follows: He was a retail dealer in butter, eggs, etc., in the city of Altoona. At the preceding session of the quarter sessions he had pleaded guilty to three indictments in the same court for selling oleomargarine containing coloring matter. Subsequent to this he advertised that he could “ supply people with the colored article,” and provided printed slips to facilitate the business by transmitting orders for the goods to a Chicago dealer and signed by the customer at his request. When ashed for oleomargarine he replied, “We don’t handle oleomargarine; but there is a plan by which we can get it in a few days.” As to the paper slip or signed order which was as follows: “ To William J. Moxley, Incorporated, Chicage, Ill.: Please ship to my address in care of H. C. Leslie, 10 pounds of butterine, as follows: 10 pound package, Daisy brand, two pound rolls; ship by Adams Express Company, C. O. D.” he said: “As was my custom, on the evening I got it I sent it to Chicago.” He further stated: A great many people knew that they could get oleomargarine ; I have made a great many sales by having it known that they could come to me and get it.” This order was given to him in his store in Altoona and by him mailed to the Chicago dealer. The article ordered by this particular customer was sent in the same box with a number of others, and shipped to H. C. Leslie, agent. At the time the order was given the customer paid to Leslie $2.00, which was sent by him to the Chicago dealer. The defendant admits that he presumed and supposed that the manufacturer was sending colored oleomargarine, that he advertised it as colored oleomargarine and butterine, and further that the arrangement had been adopted by him to avoid liability under the act of assembly, and that he preferred colored oleomargarine for the reason that he could not sell uncolored oleomargarine in the city of Altoona. He solicited orders for an article, the sale of which was prohibited by law. He received the pay and delivered the product. He devised a “scheme or plan” aud advertised for this unlawful
A consignment is not an invariable equivalent of delivery, and whether it was intended to operate as such is a question of intention, and that intention must be decided by a consideration of all the circumstances of each case. No general rule can be laid down by which the question can in all cases be determined: Porter on Bills of Lading, sec. 481.
Where bottles or packages are fastened together and marked or are packed in a larger box, barrel, crate or other receptacle, the outside box, bundle or receptacle, and not any bottle or package contained therein constitutes the original package, and this is true although each bottle or package is separately wrapped in paper, and labeled original package with the name of the importer : 17 Am. & Eng. Ency. of Law (2d ed.), p. 73.
If acts and declarations are any guide to the intentions, this defendant, through his “scheme or plan” arranged to have colored oleomargarine delivered at his store for sale to his customers, for which he received full pay at the time he accepted the order, His knowledge of the contents of the packages, the
The judgment is affirmed.