People v. Atlas , 37 N.Y. Crim. 1 ( 1918 )

Page, J. (dissenting):

The information charges the defendant with “ unlawfully, with intent to defraud, exposing for sale to the public generally certain meat which he, the said defendant, falsely represented to the public generally to be kosher and as having been prepared under Orthodox Hebrew Religious Requirements,” committed as follows:

Then follow allegations as to the requirements of the orthodox Hebrew religion in regard to the meat of certain animals specified and certain other animals to the district attorney unknown which should not be eaten by Hebrews unless the animal had been slaughtered and cut by an orthodox Hebrew acting under the authorization of a rabbi, and unless such animal at the time of such killing was sound and healthy and without broken ribs, and unless the knifé with which such animal was killed was in a certain specified condition, and unless the meat had been marked by cutting the same with a knife and in other ways, a more particular description of such markings being to the district attorney unknown, and unless such meat was meat which had not been marked by two straight cuts therein which crossed each other, and meat of such animals which conformed to such requirements among others, to the district attorney unknown, was at all the times therein mentioned known to the orthodox Hebrew and to others as kosher. Then follows the allegation that on a day certain the defendant unlawfully with intent to defraud did expose for sale to the public generally certain meat, and then follows a description of the meat in similar language to that contained in the above-mentioned specification, including the allegations as to all the things unknown to the district attorney, and whereas in truth and fact the meat was not kosher and had not been prepared under orthodox Hebrew religious requirements, in that certain pieces of such meat had been cut from an animal which had not been slaughtered by an orthodox Hebrew acting .under the authorization of a rabbi, and certain other pieces of such meat had been cut from an animal which at the time of killing was not sound or healthy nor without broken ribs, and certain other pieces of such meat which had not been killed or cut by a knife with a perfectly sharp edge, and certain other pieces of such meat were cut from the hindquarters of the slaughtered animal, and certain other pieces of such meat had not been marked by cutting the same with a knife or in any other manner, and certain other pieces of such meat were meat which had been marked by two straight cuts therein which crossed each other, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.

The vice of the statute is clearly demonstrated by this information. The statute itself is so uncertain and ambiguous in its terms that no one can tell from reading it what the particular thing is that is prohibited. Nowhere is the word “ kosher ” which is used in the statute defined. Upon the trial of this action a rabbi was called as an expert to define the meaning of this word. He stated that it could not be defined in a word, that it meant meat which should be cut from certain portions of certain animals in accordance with the rule of the orthodox • Hebrew religion by certain persons who were authorized by such rules to perform the act of slaughtering; that certain minute particulars had to be observed. The meat, although prepared in this manner, had to be kept separate and apart from any meat that was not kosher or it thereby lost its kosher condition. These rules and regulations, he testified, were to be gathered from the Bible and from certain codes of Jewish law and a large body of precedents which had been established by the rulings of rabbis in response to questions that had been propounded, and he stated that the bibliography of the question of kosher filled several thousand great volumes. When the learned district attorney attempted in the information to define the specific acts which were necessary to show that the meat offered by the defendant was not kosher, there are more specifications omitted because the district attorney confesses that they are unknown to him than are set forth with particularity.

It is a fundamental canon of criminal legislation that a law which takes away a man’s property or liberty as a penalty ¡ for an offense must so clearly define the acts upon which' the penalty is denounced that no ordinary person can fail to understand his duty and the departure therefrom which' the law attempts to make criminal. (Brown v. State, 137 Wis. 543, 548.) “ It is impossible,” says Mr. Dwarris, “ to, dissent from the doctrine of Lord Coke that acts of Parliament' ought to be plainly and clearly, arid not cunningly and darkly penned especially in. Criminal matters.” (Dwarris Statutes, *652.)

In a recent case (Railroad Com. v. Grand Trunk W. R. R. Co., 179 Ind. 255, 263) the Supreme Court of Indiana said: “ ‘ The courts cannot venture upon the dangerous path of judicial legislation to supply omissions, or remedy defects in matters committed to a coordinate branch of the government. It is far better to wait for necessary corrections by those authorized to make them, or, in fact, for them to remain unmade, however desirable they may be, than for judicial tribunals to transcend the just limits of their constitutional powers.’ State v. West Side St. R. Co. (1898), 146 Mo. 155, 47 S. W. 959; Peoples v. City of Valparaiso (1912), 178 Ind. 673, 100 N. E. 70.

“ When the Legislature undertook to define an offense and provide punishment therefor in this act, it should have expressed itself in plain and specific terms. ‘ Every man should be able to know with certainty when he is committing a crime.’ United States v. Reese (1875), 92 U. S. 214, 23 L. Ed. 563. ‘ In order to constitute a crime, the act must be one which .the party is able to know in advance whether it is criminal or not. The criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. There must be some definiteness and certainty.’ Tozer v. United States (1892), 52 Fed. 917. ‘ No penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it.’ Chicago, etc., R. Co. v. Dey (1888), 35 Fed. 866, 876, 1 L. R. A. 744. An act which leaves the crime to be determined by the jury or any official body is void. A penal statute, to be enforceable, must be general in its scope and specific and certain in its provisions.”

In the instant case, whether the act is violated depends entirely upon the meaning and interpretation given to it by those expert in the rules and prohibitions of the orthodox Hebrew religion. Therefore, the statute itself requiring such an interpretation is so indefinite and uncertain that it is void and should be so declared; but even if we should accept the interpretation put upon the meaning of the statute set forth in the information and testified to by the expert called upon the trial, still, in my opinion, the evidence failed to establish the offense alleged.

The meat had upon it a tag, which was conceded to be a proper certificate that the meat was kosher in all the particulars required by the rabbinical law, but there also appeared upon this meat and upon another piece from which it was claimed that this had been cut a cross mark cut into the meat which, according to the expert testimony, was a sign that the meat was not kosher but trefa, and the conviction is predicated upon the existence of this trefa mark upon a piece of meat to which was attached a kosher tag.

There was no effort made to produce the person who sold this meat to the defendant who was a retail butcher. There was no evidence adduced that all the elaborate ceremonial of the orthodox Hebrew religion was not observed in the slaughtering of the animal nor was any other evidence given than that above specified which would tend to show either that the defendant represented the meat to be kosher or knew that the same was not kosher or that in fact the meat was not kosher.

The judgment of conviction should be reversed and the defendant discharged.

Judgment affirmed.