70 N.Y.S. 621 | N.Y. App. Div. | 1901
The defendant is a wholesale and retail liquor dealer residing in Passaic, in the State of Few Jersey. John Bohringer, a saloon keeper residing in Brooklyn, F. Y., on January 4, 1900, wrote to the defendant asking him to call at his place of business in Brooklyn, as he wished to purchase some goods. He inclosed his card, which was returned- by one Friedlander, the agent of the defendant, to whom Bohringer gave an order for two cases of “ Martell Brandy, Three Star,” and certain other liquors. The agent stated that the price of the brandy was eleven dollars a dozen, and that they could sell it for that because it, was a counterfeit of the genuine.
John F. Miller, a witness for the People, corroborated in most part, the testimony of Bohringer, and as to the argument that the verdict is against the weight of the evidence, it is only necessary to say that a careful consideration satisfies me that the question of fact was correctly disposed of so far as the defendant’s guilt is concerned.
The appellant also contends that because Bohringer knew at the time of the purchase and at the time that he received the goods that the Martell & Co. labels upon the bottles were counterfeit, the judgment of conviction cannot be sustained. Section 364 of the Penal Code reads as follows: “Offenses against trade-marks.'—-A person who knowingly, in a case where provision for the punishment for the offense is not otherwise specially made1 by statute * * * 3. Sells, or keeps or offers for sale, an article of merchandise to which is affixed a false or counterfeit trade-mark, or the genuine trade-mark, or .an imitation of the trade-mark of another, without the latter’s consent; * * * is guilty of a misdemeanor.” This section of the Code is a re-enactment of the law in respect to the violation of trade marks (Laws of 1862, chap. 306, as amd. by Laws of 1863,' chap. 209.)
The. case cited by the appellant, upon which he mainly relies (Low v. Hall, 47 N. Y. 104), was an action for a penalty, brought by the owner of a trade mark, under section 4 of chapter 306 of the Laws of 1862, as amended by section 2 of chapter 209 of the Laws of 1863. By this section the owner of any such goods was given a right of action for a penalty. The trial court held that the intent
The contention on the part of the defendant, that the Legislature intended by the enactment of this section to protect the public from the sale of counterfeit goods, when intending to purchase the genuine, is undoubtedly correct. But when he assumes that because the complainant knew that he was purchasing counterfeit goods, and purchasing them for resale to the public, so far as defendant knew or had a right to suppose from the occupation of the complainant, the statute was not violated, his position is not based upon sound principles of law or reason.
The complainant in this case was acting with one Miller, a special agent employed by the Martells. It is not claimed that either was a public officer, and that they were not accomplices in crime was held in People v. Noelke (29 Hun, 461). The court there said that it had “ become a necessity for the suppression of crime to resort to this mode of ascertaining whether a prohibited and criminal act may be committed.”
In the case at bar the jury had a right to find that the liquor was not purchased by Bohringer with a criminal intent, to wit, to resell to the public. It was bought for the purpose of proving the fact of sale by the defendant. The design of his writing to the defendant to call upon him, as he wished to purchase some liquor, was to obtain testimony that the defendant was engaged in an unlawful business. The complainant was not an accomplice. There was no criminal intent. (People v. Farrell, 30 Cal. 316; The President and Trustees of the Town of St. Charles v. O’Mailey, 18 Ill. 407.)
The utmost that can be said of the person so employed is that he is an informer, and leave to the jury the consideration of his evidence as such. The principle laid down in this case was recognized in People v. Molins (7 N. Y. Crim. Rep. 51). It there appears that the purchase was made by a detective acting on behalf of the
All concurred.
Judgment of conviction, affirmed.