27 Pa. Super. 41 | Pa. Super. Ct. | 1905
Opinion by
The defendant was convicted upon an indictment charging him with having sold a certain quantity of oleomargarine, which had not been made and kept free from all ingredients which caused it to look like yellow butter, and was not made from pure unadulterated milk or cream from the same, without the addition of any fat foreign to the said milk or cream, and was made from fats, oils and other oleaginous compounds foreign to milk or cream, and contained ingredients which caused it to resemble and look like yellow butter, and to be an imitation of yellow butter. The indictment was drawn under the Act of May 29, 1901, P. L. 327. The questions for decision upon this appeal will appear as we proceed.
2. The testimony of the chemist called by the commonwealth was to the effect that the yellow color of the oleomargarine bought from the defendant was due to the presence of cotton-seed oil, and that whatever color the cotton-seed oil in the sample had was its own color; that is, that no foreign-substance had been added to the cotton-seed oil to produce-that color. Upon cross-examination he -was asked this quéstion: “And cotton-seed'oil, as an ingredient, is recognized as a legitimate ingredient, is it not ? ” The question was not tantamount to asking him whether it is an essential ingredient, or one commonly used, but involved for its complete answer a construction of the statute which it was not within the province of the witness to give. Therefore the court was clearly right in sustaining the objection to it.
3. The defendant’s witness testified that this oil is obtained by
4. We quite agree with the counsel for the defendant that it is erroneous to give an instruction, to the jury based on rejected testimony or testimony that-has been struck out; but we do not think the record plainly shows that this rule was-violated. True, a portion of the testimony alluded to by the trial judge in that part of his charge which is the subject of the fifth assignment of error was objected to, and a motion was made, immediately after it was given, to strike it out; but the record does not show that the motion was allowed, nor that any exception was taken, nor was the court requested to charge the jury to disregard it. Moreover, the testimony alluded to related to the oleomargarine bought in January, which was the subject of the indictment, tried before the same jury and at the same time as this one, and upon which the defendants were acquitted. Under all the circumstances to which we have alluded we cannot affirm that this assignment contains reversible error; it is therefore overruled.
5. R. H. Simmers testified that he made two purchases of oleomargarine, one from the defendant personally in December, and the other from his clerk in January, and sent both to Mr. Cochran for analysis. The two indictments based on these sales were tried together. This case is based on the December sale. As we understand the testimony of Simmers when recalled upon the witness stand, he identified the two samples then before him, concerning which the previous testimony related, as being the oleomargarine he had bought in December and January and sent to Mr. Cochran for analysis. The testimony of the latter witness, so far as- he went into details, related to the oleomargarine bought in January, but he also testified that he received and examined two samples alleged to have been bought from the defendant, and that what he had testified relative to the January sample applied as well to the other. Taking the testimony of these two witnesses as a whole, we are unable to sustain the seventh assignment, which is to the effect that binding instructions ought to have been given
6. This brings us to the ninth assignment by which the principal question in the case is sought to be raised. It reads as follows: “ Under all the evidence in the case, there being no evidence of the use of artificial coloration in the material sold, the learned trial judge should have instructed the jury to find for the defendant.” We pass the objection that this assignment is not based on the refusal of a point requesting such instructions, and proceed to a consideration of the question sought to be raised by the defendant’s counsel and fully argued by counsel on both.sides. We do so more willingly because it was squarely raised in another case argued before us in December last (Commonwealth v. Caulfield, post, p. 279) and must be met. If by “ artificial coloration ” is meant the addition of some substance for the sole purpose of giving the material sold the color of yellow butter, and without which the material would still have all the essential food qualities of oleomargarine or butterine, the counsel are right in saying that there is no evidence in the case of artificial coloration. But as we have already pointed out, there is evidence from which the jury could have found that, although no such substance was added to the oleomargarine itself, or to the ingredients of which it was composed, yet that one of these ingredients, cotton-seed oil, was so treated in the process of its manufacture or refinement as to leave in it, or impart to it, a yellow color which it, in turn, imparted to the oleomargarine of which it became a constitutent; in other words, that the color of yellow butter, which was thus imparted, is not an essential quality or characteristic of cotton-seed oil. It is argued with plausibility by the counsel for the commonwealth that this evidence tends to show that there was “ artificial coloration ” of the oleomargarine sold by the defendant. We are disposed, however, not to rest our decision upon this proposition, but to consider the broader question, whether a conviction under the act of 1901 is sustainable without proof of the addition, in the process of manufacture or afterwards, of some substance which has no other function than to give the article sold the color of yellow butter, and without which the
We held in Commonwealth v. Vandyke, 13 Pa. Superior Ct. 484, that the sale of oleomargarine, which was colored in imitation of yellow butter by the admixture of the same coloring matter that is used in coloring pure butter, was in violation of the Act of May 5, 1899, P. L. 241, and that the prohibition of the sale of oleomargarine so colored, although manufactured in another state and brought into this state and sold in the original package, was not repugnant to the commerce clause of the federal constitution. In Commonwealth v. McCann, 14 Pa. Superior Ct. 221, affirmed in 198 Pa. 509, we sustained a conviction under the act of 1899 where it appeared from the record of the alderman that the defendant sold oleomargarine duly marked as such, but “ colored' yellow by the addition thereto of analyne, a foreign substance but not injurious to health.” In neither of these cases did' the precise question which is now presented arise upon the record; both were cases of artificial coloration by the admixture of foreign substances which served that purpose only. It is argued, however, that in construing the act of 1899 we held, inferentially at least, that the act was aimed at that kind of coloration only. We would not be candid if we were tó deny that there is any ' expression in our opinion in the McCann case that seems to sustain such inference. The idea intended to be expressed was not as clearly expressed as it might and ought to have been; we think, however, taking the opinion as a whole, and viewing it in the light of the facts to which it related and the question for decision, that it does not necessarily lead to the conclusion for which counsel contend. ' Be that as it may, we are now dealing with the act of 1901, in which the intention of the legislature seems to us to be more clearly expressed than in the act of 1899. We therefore dismiss the cases above cited with the remark that they were correctly decided on their facts, but they do not rule the present case one way or the other.
The first section of the act of 1901 provides, inter alia, that no person shall sell “ oleomargarine, butterine, or any similar substance, article, product or compound, made wholly or partly out of any fats, oils or oleaginous substance, or compound
We proceed to a consideration of some of the principal reasons urged against the adoption of that construction, and in favor of a construction which will restrict the statute to “ artificial coloration ” produced by the admixture of some substance which serves that purpose only.
Pennsylvania had a statute, Act of May 21, 1885, P. L. 22, which absolutely prohibited the manufacture and sale of oleo
But it is argued that the construction contended for by the defendant'must be adopted, otherwise, the act imposes unwarrantable restrictions upon interstate commerce. We do not concede this proposition; nor do we express any opinion upon its soundness. The sale in this case was not an interstate commerce transaction. But, for the sake of the argument only, let the proposition above stated be conceded, yet it would not necessarily follow that the construction contended for ought to be adopted by the courts. It is a safe and wholesome rule, that wherever a statute is susceptible of two constructions, of which the one would make it unconstitutional, the other constitutional, the latter is to be adopted. But there are limits
The legislature evidently believed, presumably after a full investigation of the subject, that these provisions relative to the color of the product, in addition to the other provisions relative to the signs to be displayed and the- marks and stamps to be put on the packages, were necessary in order to completely prevent deception. This was a legislative question, and it is not within our province to set their judgment aside merely because we may believe that the provisions-are unnecessary for the full accomplishment of that purpose, or are unduly severe: “ The rule of law upon this subject appears to be that, except
Upon mature consideration of the whole question we conclude, that there was ample evidence to warrant the conviction of the defendant, although there was no evidence of the artificial coloration of the oleomargarine by the addition thereto, in the process of manufacture or afterwards, of any substance which had no other function than to cause it to resemble and be in imitation of yellow butter.
All the assignments of error are overruled, the judgment is affirmed and the record is remitted to the court below to the end that the sentence be carried into effect.