Commonwealth v. Norton

Opinion by

William W. Porter, J.,

The defendant was convicted of counterfeiting the label of the Cigar Makers’ International Union of America. The conviction was had under the act of May 21, 1895, which provides, generally, for the adoption of trade-marks, labels, symbols or private stamps by incorporate or unincorporate associations or unions of workingmen, and makes the counterfeiting or imitation of such trade-marks, etc., a misdemeanor. The act provides also for the registration of such trade-marks, etc., with the secretary of the commonwealth; for the certification of the registration; and that the certificate of the secretary shall in all suits and prosecutions under the act be deemed prima facie evidence of the adoption of such trade-marks, etc., and of the right to adopt the same.

The first assignment of error relates to the admission in evidence of the original certificate, issued by the secretary of the commonwealth to the Cigar Makers’ Union. The paper was objected to on the grounds, (1) that the record of the registration or certified copy of the entire record was necessary; (2) that the certificate was not evidence of the fact of registration ; and (3) that the certificate was inadequate in form, since it certified only that the union itself was registered. Objection was also made on constitutional grounds, which will be considered hereafter. (1) The act itself provides, as we have seen, that the secretary of the commonwealth shall under his hand and seal, deliver to the union a certificate of registration, and that such certificate shall be prima facie evidence of the adoption of the label and of the right to adopt it. It- was, therefore, not necessary for the plaintiff to prove the registration as a record. (2) The effect given to the certificate as proof of the adoption and the right to adopt, necessarily involved giving it effect as evidence of registration, since the certificate could issue only and be used for the purposes indicated, after registration, and on its face bears evidence of the fact. (3) The concluding language of the certificate is not exact. In terms it seems to certify the registration of the union. The body of the certificate, however, describes the label as presented to the secretary of the commonwealth for registration under the act of May 21, 1895. Nothing in the facts stated or recitals set forth in the certificate indicates registration of anything or for any purpose, other than that contemplated by that act. The certificate recites that the provisions of the act have been complied with and that an exact description of the label has been duly registered and all papers relating thereto filed. The certificate, taken as a whole, is in effect a certification of registration of a label as contemplated by the act of May 21, 1895. The first assignment is dismissed.

The second assignment of error is to the refusal of this point of charge: “ If the jury .believe that at the time the labels were printed and sold by the defendant, he had no actual notice of the fact that the label was registered with the secretary of the commonwealth of Penn., the verdict must be not guilty.” Upon the label which the defendant counterfeited were these words: “ All infringements upon this label will be punished according to law.” The defendant must be charged with the knowledge that he was, in counterfeiting the label, doing an act morally wrong : McVey v. Brendel, 144 Pa. 285, and of the law which imposed a penalty for the commission of the act. The act of assembly requires no notice of the fact of registration to be put upon the labels registered, but further than this, the label counterfeited by the defendant, had upon it a warning in the language above quoted. Where the act of the defendant is essentially and prima facie wrong, there can be no pretense of innocent intention. No error was committed in refusing the point of charge.

The third assignment of error is to the refusal of the trial judge to charge that “ the label alleged to have been printed by the defendant is not such a label as is contemplated by the act of assembly and if registered, is not protected under the act. There being no valid registration of the label, the prosecution fails and your verdict must be not guilty.” If the case before us were a proceeding primarily attacking the right to register, the argument that the label contained objectionable matter would have some force. The label is in many respects the same in form as that which was condemned in no measured terms by the Supreme Court in McVey v. Brendel, supra. True, some of the offensive expressions have been expunged, but some expressions yet remain which were never intended, by the legislature to be made a part of labels registered under the act of 1895. But this is not such a proceeding, and the fact that the label contains objectionable matter does not, in our opinion, in this prosecution, warrant us in declaring the label to be outside of the penal provisions of the act in a case where the label has been in fact registered. As said by the learned judge of the court below, a counterfeiter of a label which lias been registered under the act of 1895, has apparently no more right to demand an acquittal on the ground of the illegality of the label registered, than -one who has robbed a corporation, to set up that the company despoiled has no de jure existence. We think that the point of charge was rightly refused.

The fifth assignment of error raises the question, whether the act of May 21, 1895, is in violation of article 3, section 7 of the constitution of Pennsylvania, prohibiting the passage of local or special laws granting special or exclusive privileges. This branch of the case has been skilfully and elaborately presented by counsel. It has received from us a protracted and careful examination. It is said that the privilege created by the act is conferred only on union workmen, and that this is a basis of classification which results in special legislation, conferring special privilege on particular individuals or associations. Reflection and examination, however, have led us to the conclusion that the question thus raised is beyond the scope of the present inquiry. We have before us the case of a man convicted of counterfeiting a label adopted by an association which had the right to adopt the same: McVey v. Brendel, supra. The defendant knew or should have known that by counterfeiting he was guilty of wrongdoing. For his act the legislature has said that he shall be punished as for the commission of a misdeameanor. It is clear that the police power of the state extends to provision for the punishment of cases of moral wrong, and that with the legislature rests the determination of the question whether the particular wrongful act shall be punished or not. The question, which we are called upon to decide is not whether the legislature has offended the constitutional inhibition in an enactment which, in its operation, is alleged to result (indirectly and consequentially) in conferring a special privilege upon a special class. So far as the case before us is concerned, we are determining only that the legislature has the right to impose a penalty upon the commission of an act of turpitude. That the man who counterfeits or imitates a label, purporting to be a union label, is doing that which is wrong, has been already decided: McVey v. Brendel, supra. It is the public wrong that is being redressed, not a private injury. It is the counterfeiting of instruments of a certain class with which we have to do. We are not prepared to hold that a statute declaring such an act a public wrong and an indictable offense is unconstitutional and void, because it does not include every trademark or label which individuals or associations may adopt. The fifth assignment is dismissed.

Holding these views, we dismiss also the sixth assignment, upon which is founded the contention that the act of 1895 is in violation of the fourteenth amendment of the federal constitution.

It is complained (seventh assignment) that judgment should have been arrested because the bill of indictment did not sufficiently describe the, label counterfeited. The bill charged the offense substantially in the language of the act of assembly; the instrument which was counterfeited was described in the bill by the name and designation by which it was known, and the fact of its registry with the secretary of the commonwealth was set forth. Upon this bill the defendant went to trial. He cannot have suffered through ignorance of the matter to be tried. The bill was not bad on its face, and the defendant did not demand a bill of particulars. We dismiss the seventh assignment.

The remaining assignments do not seem to us to require special review. All of the assignments are dismissed, the judgment is affirmed and the record is remitted that the sentence imposed by the court below may be carried into effect.