People v. Wolin

SHAW, Acting P. J. The complaint charges that defendant did “sell and offer for sale and hold out for sale and offer to deliver” adulterated fluid extract of ginger. The statute (Stats. 1907, p. 230) makes it unlawful .to “sell or offer for sale, or keep for sale” any adulterated drug, and so defines “drug” as to include fluid extract of ginger. There is no such offense as “holding out for sale”, nor (except in case of imported drugs, which is not the charge here) any such offense as “offering to deliver”. The conviction must therefore rest for support on the charge of selling and offering for sale. No offer is shown by the evidence. The sale proved was one made to an agent of the state board of health, who announced his authority to defendant and stated that he wished to take officially a sample of the ginger. Thereupon defendant delivered to the agent four bottles of the-ginger, for which the agent paid him $1.

We do not regard such a transaction as a violation of the statute. Section 9 provides that any agent of the state board of health shall have the right to purchase any drug suspected of being adulterated, or if a sale be refused, to take samples thereof; and section 11 makes it a misdemeanor for any person to refuse to sell such a sample to [774]such an agent. We cannot ascribe to the legislature an intention to punish as a crime an act, the refusal to do which is also made criminal; and yet, an affirmance of this conviction must rest on such a construction of the statute. In Ohio a similar statute relating to oleomargarine was apparently so construed in State v. Rippeth, 71 Ohio St. 85 [72 N. E. 298]. The point is not mentioned at all in the majority opinion, but, as appears from the dissenting opinion of Crew, J., it was necessarily involved in the case. We are in accord with the reasoning of this dissenting opinion and refer to it for a fuller expression of our views. We quote from it as follows: “Such furnishing and delivery” (of a sample for analysis), “was, by force of the provisions of section 4200-7, made compulsory, and such furnishing would not, therefore, in legal intendment amount to or constitute a sale, inasmuch as in such transaction one of the essential elements of the contract of sale is wanting, viz.: the voluntary assent of the seller. . . . The statute having made the furnishing of a sample, for the purpose of analysis, obligatory and compulsory, a furnishing for such purpose is not a crime, and cannot rightfully be made a predicate for the criminal prosecution of the person so furnishing said sample . . . The legislature is without right to make unlawful and criminal the doing of the very thing which by positive enactment it commands and enjoins to be done. A construction that gives to this statute such an effect and produces such a result, offends against reason and good conscience, renders the statute invalid, and should therefore not be adopted.”