People v. Luhrs

127 A.D. 634, 22 N.Y. Crim. 550, 111 N.Y.S. 749, 1908 N.Y. App. Div. LEXIS 4068

Opinions

Clarke, J.:

The defendant was convicted of a violation of subdivision 6 of section 364 of 'the Penal Code,

Footnotes

•

* which provides that any person is guilty of a misdemeanor “ who knowingly sells, offers or exposes for sale, any goods which are represented in any manner, by word or deed, to be the manufacture or product of any person, firm or corporation other than himself, unless such goods are contained in the original packages and under the labels, marks or names placed thereon by the manufacturer who is entitled to use such marks, names, brands or trade-marks.”

The Wilson Distilling Company manufactures whisky which it places in bottles bearing its trade mark and label, which indicate that it is the manufacturer, producer and bottler of the whisky contained therein. The trade mark and label guarantees that the whisky in the bottle has-not only been manufactured by the Wilson Distilling Company, but that the contents of the bottle have been placed in that identical bottle by the said company. The purpose of the trade mark provisions is not only to protect the manufacturer, but also to protect the public. The manufacturer is protected against unfair competition. The public is insured in getting what it wants and what it pays for.

The defendant, a bartender in a saloon, sold certain drinks upon a request for Wilson whisky from a Wilson whisky bottle bearing the trade mark and label of the Wilson Distilling Company. He then refilled said bottle from a demijohn and sold other drinks upon request for Wilson whisky from the same bottle after it had been so refilled by him. Thus he represented both by word and deed that the whisky so sold by him was the product of the Wilson Distilling Company, at the time well knowing that it was not contained in the original trade marked and labeled package of the manufacturer. There was no proof whether the whisky with which he refilled the bottle was Wilson whisky or not.

The appellant claims that by reason of the failure to prove that the whisky sold was not Wilson whisky, no crime was made out. He also claims that if the law is so to be construed as to make the acts proved constitute a crime, then the act is unconstitutional as in violation of article 1, sections 1 and 6, of the Constitution of the State and the 14th amendment, section 1, of the Constitution of the United States.

It is suggested that the statute means that the person selling the goods must know that what he sells is not the article that it purports to be; that he must be guilty of fraud, and that, as there is no proof that the article sold was not Wilson whisky, the crime was not proved; that there was no intent to defraud established.

I cannot so read the statute. Subdivision 5 of the same section (Penal Code, § 364) provides that “a person who knowingly * * makes or sells, or offers to sell or dispose of, or has in his possession with intent to sell or dispose of, an article of merchandise with such a trade-mark as to appear to indicate the quantity, quality, character, place of manufacture or production, or persons manufacturing or producing the article, but not indicating it truly * * * ” is guilty of a misdemeanor. By this provision, selling whisky which is not Wilson whisky in or from a bottle bearing the Wilson trade mark is prohibited. To adopt the construction suggested would be to interpret the two successive subdivisions as providing for the same offense. This is not reasonable and offends that canon of statutory construction which requires meaning to be given to all the language of a statute when possible. The meaning is clear and unambiguous and forbids the precise thing proven in this case — the refilling of a trade marked original package, even with like goods, and selling therefrom with the representation that it is the original package. Neither is “ fraudulently ” to be imported into the statute, nor is “ knowingly ” to be applied to the illegality of the act. If the goods are so sold by one knowing that the package has been refilled, the statute is satisfied. Section 718, subdivision 4, of the Penal Code provides that “ the term ‘ knowingly ’ imports a knowledge that the facts exist which constitute the act or omission a crime, and does not require a knowledge of the unlaw fulness of the act or omission.” The act alone, irrespective of its motive, constitues the crime, and it matters not how innocent of wrongful intent the alleged offender may be. The only intent required is the general intent to do the' prohibited act. (People v. Abeel, 182 N. Y. 415, where the whole court agreed that for the offense described and punished under subdivision 3 of section 514 of the Penal Code, “ intent is not a necessary ingredient of the offense, except the intent to commit the prohibited act.”)

The appellant claims that the act is unconstitutional in that it deprives him of his property without due process of law, the argument being that, having bought the goods, he is entitled to sell them as and how he pleases; that if he choose, he may pour the whisky from one labeled and trade marked bottle into a demijohn, and from that demijohn fill other labeled and trade marked bottles, and then sell those refilled, or from those refilled bottles when and as he pleases, and to deprive him of that right by making it a criminal offense so to do is a deprivation of property, namely, the use and disposal of property, without due process of law.

That argument, carried to its logical conclusion, would destroy all the statutes providing for the protection of trade marks. Why should not á man be allowed to use his property as he will, to use any trade mark, to affix a well-known mark to any product, to refill old bottles with a foreign substance and sell it under another man’s label, mark and reputation ? All of these provisions are made to prevent fraud on manufacturers who, by their skill and' care, have established a reputation for their goods, and to prevent fraud on the customer who buys on the credit of the trade mark and label. In this age of canned, bottled and packed goods, the assurance to the public that the goods asked for and received have been packed in the identical package by the manufacturer is as important as that they have been manufactured by him. This assurance is given by the marks and labels. It seems to me a.proper legislative requirement, warranted under the general police powers of the State for the purpose of protecting the public against fraud, imposition and deception. If the Legislature has the power, which the appellant concedes, to forbid trade marked packages from being filled with goods not made by the owner of the marks and sold under the representation that they are that manufacturer’s product, wliy has it not the power, in order to secure that end, to prevent the knowingly selling of goods represented to be the manufacture of any person other than himself, unless such goods a.re contained in the original packages and under the marks placed thereon by the manufacturer entitled to use such marks ? When a .person buys a copyrighted book, he does not buy the copyright; when he buys a patented article, he does not buy the patent; and when he buys a-trade marked package, he does not buy the trade mark. When he refills the bottle or the package, he makes the mark thereon false. For that mark certifies the manufacture and the packing of the contents. He may resell the package and the contents as he-will. He may not refill, for then he makes a false representation; and if he sells after refilling, he sells upon that representation.

It follows that the judgment appealed from should be affirmed.

Scott, J., concurred; Ingraham and McLaughlin, JJ., dissented.

See Laws of 1889, chap. 45. Since amd. by Laws of 1908, chap. 427.— [Reo