Fox v. State

Fowler, J,, delivered the opinion of the Court. The traverser was indicted under the Act of 1900, ch. 496, codified as secs. 88 and 90 of Art. 27 of the Code (Supplement 1890-1900, pp. 33 and 34.) The indictment contains two counts, and although the de ¹⁴⁵ murrer goes to the whole of it and to each count thereof, yet no question is seriously made to the first count. It is conceded by the appellant that the first count “ is perhaps properly framed.” We see no objection to it, and none having been pointed out, we conclude that inasmuch as it follows the language of the statute creating the offense, it is free from objection, 1 Bishop Cr. Proc., 4 ed., sec. 612, etc.; Dickhaut v. State, 85 Md. 464 . i But it is insisted that the second count is fatally defective.

Section 90, Art. 27 of the Code on which this count is framed, provides that any person who by himself or his agents or as the agent of any other person sells or offers to any person who asks for butter, any oleomargarine, with or without coloring matter shall be guilty of a fraud. The contention is that the indictment should have alleged, but did not so allege, that oleomargarine was “ unlawfully and fraudulently ” sold. The indictment alleges that the traverser did unlawfully sell, &c., but there is no allegation that the sale was fraudulent as well as unlawful. Without the allegation of fraud there can, the traverser contends, be no conviction and that the indictment is fatally defective.

This view is based upon the proposition that the statute prohibits only a fraudulent sale, but in our view it bears no such construction. The plain language is that whoever sells contrary to the prohibition of the statute, shall be guilty of a fraud and shall be fined $100 for the first offense and imprisoned three months for each subsequent offense. Hence, whether the dealer knowingly, wilfully and fraudulently sells oleomargarine' to one who asks for butter, or makes such sale in ignorance of the fact whether the substance he sells is oleomargarine, butterine or pure butter is altogether immaterial. Such a sale the statute pronounces a misdemeanor.

In a word the statute does