People v. Waters , 100 N.Y.S. 177 ( 1906 )

Williams, J.:

The judgment should be affirmed, with costs.

The action was brought to recover a penalty for the violation of section 27 of the Agricultural Law (Laws of 1893, chap. 338, as amd. by subsequent acts^* ).

The complaint originally charged the sale of “ cooking butter,” but on the trial was amended so as to charge the sale of “ renovated butter,” and it was charged that there -were no marks on the package or wrapper to indicate the kind of butter it contained. The material sold was in a tub in a cooler in defendants’ store. The tub had upon it the words “ Renovated butter,” but there was dispute in the evidence as to whether these words were plainly visible while the tub remained in the cooler. There was also dispute in the evidence as to whether the tub was removed from the cooler before the butter was sold, or whether before the sale the purchaser saw the words on the tub, or was told that the material offered for sale was “ renovated butter.” These disputed questions were all settled by the jury in favor of the defendants, and unless there was reversible error in the charge, the verdict would seem to be amply sustained by the evidence.

People v. Mack (97 App. Div. 474) decided by this court, is decisive of the questions involved in this case. It will be necessary to overrule or quite strictly distinguish that case and this in order to reverse this judgment. On the merits the verdict here was right. The only real question is as to the charge. It is difficult to find any real reason for complaint as to this. The trial judge was not very careful in the use of his language at one place, but there can be little doubt that he was trying to follow the rules laid down in People v. Mack. The exception to the charge complained of, in effect that “ if an oral warning was given by the storekeeper to the purchaser that the article sold was renovated butter, that warning was in itself a sufficient compliance with the statute,” was not well taken. Ho such language as this was used. It is claimed the idea was expressed, if not in this language, and the exception was also “ to whatever the court said on that subject.” This will hardly do. If the judge’s language was not clear or explicit, a request should have been made in express terms. A judge cannot be expected to recollect the precise words or language used by him in an unwritten charge. We do not assent to the proposition that any oral statement as to the nature of the material offered for sale constitutes a compliance with, or excuse for noncompliance with, the statute, and if any language in the opinion of the court in People v. Mack seems so to imply, we are not disposed to follow the same. In this case the judge charged the law quite clearly to the contrary in some parts of his charge. Only at one place did he seem to be wanting in clearness, and w;e think the jury could hardly be misled by such language, and the counsel did not properly call attention thereto and ask to have the real idea of the judge explicitly and clearly stated.

Hash, J., concurred; McLennan, P. J., concurred in result; Spring, J., dissented in an opinion in which Kruse, J., concurred.

* See Laws of 1893, chap. 338, § 37, as amd. by Laws of 1899, chap. 149, and Laws of 1900, chap. 534.— [Rep.