People v. Shifrin ( 1950 )

Per Curiam.

Defendant was convicted of selling “ a bag of pigeon feed ” before 10:00 a.m. on a Sunday, in alleged violation of section 2147 of the Penal Law. That section, which prohibits generally the sale of any property on Sunday, contains, among others, the following exception: “ 1. Articles of food may be sold, served, supplied and delivered at any time before ten o ’clock in the morning ’ ’.

“ Food ” is uniformly defined by lexicographers as including nutriment for animals as well as humans (see, also, Penal Law, §§ 185, 187). Inasmuch as the Legislature has not limited the word “ food ” to that meant for human consumption only (as, e.g., Penal Law, § 1760), we may not impute to it an intention to render the act charged a crime. “ Acts otherwise innocent and lawful, do not become crimes, unless there is a clear and positive expression of the legislative intent to make them criminal. The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.” (People v. Phyfe, 136 N. Y. 554, 559; People v. Wallace & Co., 282 N. Y. 417; People v. Adamkiewicz, 298 N. Y. 176; Winters v. New York, 333 U. S. 507, 515-516.)

The judgments should be reversed and the information dismissed.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

Judgments reversed, etc.