Hancock v. State

Pearce, J., delivered the opinion of the Court. In this case the appellant was indicted for violation of sections 89 and 91 of the Code of Public General] Laws, prohibiting the sale of oleomargarine, and the case was ar ⁷²⁵ gued as a part of the case of Rasch v. The State, decided at the present term (post., Unreported Cases). The indictment contained three counts, the first of which was in all respects the same as the first count in Rasch's case. The second and third counts were under section 91, which makes it unlawful for any keeper or proprietor of any boarding-house, restaurant or place of entertainment, or any person having charge thereof, to keep, use or serve therein, either as food for their guests, boarders, patrons or customers, or for cooking purposes, any article made in violation of the three preceding sections, commonly known as oleomargarine.

The second count* charged a violation of section 91 in keeping, using and serving oleomargarine as food to his boarders, patrons and customers generally, while the third count charged, using and serving the same as food to his boarder, patron and customer, Charles G. Wanner. The State abandoned the first count and elected to go to trial on the 2nd and 3rd counts, and thereafter the course of pleading and mode of presenting defence was the same in all respects as that pursued in the Rasch case, but, lest there should be any misapprehension in this regard, the pleading will be fully stated. The appellant first demurred to the second and third counts, and the Court overruled the demurrer. He then filed a special plea, alleging: 1st.

That he was the keeper of a restaurant, as set forth in the second and third counts of the indictment. 2d. That he served the article set forth in said counts, and, that the article was olemargarine, a well-known article of commerce, and recognized as such by Act of Congress, regulating its manufacture, sale, importation and exportation. 3d. That said oleomargarine is a nutritious and wholesome article of food, and entirely free from any deleterious substances. 4th. That said oleomargarine was manufactured by Wm.

J. Moxley,