pared in imitation of butter, and that this substance was an imitation of butter, and was therefore margarine. But the court held that the substance sold was not margarine, but margarine and water; and that the seller had violated a statute which provided that "No person shall sell to the prejudice of the purchasers any article of food which is not of the nature, substance and quality of the article demanded by such purchaser." In a subsequent case the same court held that a mixture of butter and milk, called "Peark's Butter" was not margarine within the definition quoted above, and therefore could be sold, although containing more than 10 percent of butter fat. "Nut cream butter,' an article prepared in imitation of butter, but containing no animal fat, and unknown at the time of the adoption of the above definition, is "margarine" within such definition.*

§ 577. Imitation of Butter.

Where a statute makes it an offense to sell or offer for sale any article of food which is an imitation of or sold under the name of another article, the sale of an article which is an imitation is a violation of the Act, though the article itself is neither adulterated nor deleterious to health.1

2 Burton v. Mattison, 66 J. P. 628, 86 L. T. 770; Roberts v. Leeming, 69 J. P. 417, 3 L. G. R. 1031. 3 Bayley v. Pearks, Gunston and Tea, Limited, 66 J. P. 790, 87 L. T. 67.

4 Wilkinson v. Alton, 72 J. P. 252, 99 L. T. 119, 6 L. G. R. 544.

In the examination of these cases it must be borne in mind that it is made an offense to sell margarine which contains more than sixteen percent of water. 7 Edw. 7, ch. 21, § 4.

The English statute now in force defines "margarine" as meaning "any article of food whether mixed with butter or not, which resem

bles butter and is not a milk-blended butter." 7 Edw. 7, ch. 21, § 13.

What plea in defense must state where it is alleged the oleomargarine sold was manufactured outside the State. Rouch v. State, 89 Md. 755, 43 Atl. 934.

1 Commonwealth v. Kolb, 13 Pa. Super. Ct. 347; Waterbury v. Newton, 50 N. J. L. 534, 14 Atl. 604; Bayless v. Newton, 50 N. J. L. 549, 18 Atl. 77.

Under the New York law of 1885, ch. 183, § 7, forbidding the manufacture or sale of products not made from unadulterated milk, in imitation or semblance, or designed to take the place of butter,

§ 578. Natural Color-Imitation of Butter.

A statute which makes it an offense to manufacture or sell any product made wholly or in part of any fat not produced from adulterated milk or cream, which shall be in imitation of yellow butter, but providing that it shall not be construed to prohibit the manufacture or sale of oleomargarine free from coloration or ingredient that causes it to look like butter, does not prevent the manufacture or sale of an article, the ingredients of which themselves naturally produce the yellow color, and thereby resemble yellow butter.1

§ 579. Pure Butter of Low Grade.

A statute defining oleomargarine as any substance, not pure butter, of not less than 80 percent of butter fat, which substance is made as a substitute for butter, does not include butter made from pure milk without any adulteration,

it is sufficient to constitute the offense that coloring matter is present, making the oleomargarine sold resemble butter; such coloring matter not being essential or necessarily incident to its manufacture, and the only object being to make the oleomargarine resemble dairy butter, and so increase its value. People v. Arensberg, 105 N. Y. 123, 11 N. E. 277, 59 Am. Rep. 483. Consequently it was held that an instruction to the jury that if they believed the defendant sold an article called "oleomargarine," and that it was not a production of pure, unadulterated milk or cream, he was guilty, was erroneous in not submitting to them the question whether the article was or was not an imitation of butter. Ibid.

1 Bennett v. Carr, 134 Mich. 243, 96 N. W. 26, 10 Detroit Leg. N. 407; People v. Schintzins, 61 N. Y.

Misc. 410, 113 N. Y. Supp. 313; People v. Arensberg, 105 N. Y. 123, 11 N. E. 277, 59 Am. Rep. 483.

The Pennsylvania statute of May 29, 1901 (P. L. 277), does prevent the sale of yellow oleomargarine, though the resemblance to yellow butter is produced by the admixture of the component parts of the article. Commonwealth v. Mellet, 27 Pa. Super. Ct. 41; Commonwealth v. Vandyke, 13 Pa. Super. Ct. 484; Commonwealth v. Caulfield, 27 Pa. Super. Ct. 279.

The New York statute prohibit ing the coloring of oleomargarine. to resemble butter, is aimed at an intentional imitation of dairy butter, and not at common qualities inherent in the article. People v. Simpson, Crawford Co., 62 N. Y. Misc. 240, 114 N. Y. Supp. 945; affirmed 142 N. Y. App. 126 N. Y. Supp. 1141.

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though it may be deficient in butter fats, where such statute does not purport to regulate the sale or grade of butter.1

§ 580. Pure Butter Below Grade.

A statute providing that the word "oleomargarine" shall mean any substance, not pure butter, of not less than 80 percent of butter fats, which substance is made as a substitute for butter, does not apply to admittedly pure butter, although it contains less than 80 percent of butter fats.1

§ 581. Coloring Butter no Offense.

A statute which prohibits the manufacture and sale of oleomargarine in imitation of butter has no application to the manufacture of butter; and therefore it is no offense to color butter in order to make it yellow.1

§ 582. Non-imitation of Butter-Imitation.

A statute which prohibits the manufacture and sale of oleomargarine made in imitation of butter, but providing that nothing in the Act shall be constued to prohibit the manufacture and sale of oleomargarine in a distinct form, and in such manner as will advise the consumer of its real character, free from coloration or ingredient that cause it to look like butter, does not apply to oleomargarine not made in imitation of butter, for the statute is directed solely to products in imitation of yellow butter.1 To constitute a violation of the statute, the article must be so colored as to imitate natural butter. When the offense is a sale of a product made in imitation of butter, it is error for the court to tell the jury the offense was committed if the defendant sold an article not the production of pure unadulterated milk or

1 State v. Ransick, 62 Ohio St. 283, 56 N. E. 1024.

1 Ransick v. State, 15 Ohio Cir. Ct. Rep. 371, 8 Ohio Dec. 306.

1 Commonwealth v. Vandyke, 13 Pa. Super. Ct. 484.

1 Commonwealth v. Huntley, 156 Mass. 236, 30 N. E. 1127, 15 L. R. A. 839.

2 People v. Arensberg, 40 Hun 358.

cream, in the absence of instructions submitting the question whether the article was or was not an imitation or semblance of butter. The phrase "yellow butter " used in a statute making it an offense to sell or offer for sale oleomargarine colored in imitation of "yellow butter" made from pure milk or cream, means any butter produced from pure milk or cream having a "perceptible shade" of yellow. Where a statute makes it an offense to manufacture and sell oleomargarine that is an imitation or semblance of natural butter, the imitation or semblance must be proven before there can be a conviction. Under such a statute, where the evidence showed a sale by the defendant of oleomargarine containing about as much artificial coloring as was used in butter, and in close imitation thereof; and there was evidence that most butter contained artificial coloring matter, but there was no evidence of the color of natural butter, except that some was nearly white, which would have been the case of oleomargarine, had it not been colored, it was held that the evidence was insufficient to show that the oleomargarine was manufactured as an imitation of natural butter, since the evidence showed no standard by which a comparison in color can be made. Where a statute forbids the manufacture or sale of any substitute for butter with which is combined any annatto or compound of it, or any substance or substances for the purpose or with the effect of imparting to it a yellow color, so that the substitute resembles yellow butter, it is immaterial what substance is used to give the substitute such resemblance." A statute prohibiting the manufacture of any substance not produced from milk or cream and not the product of the dairy, with intent to sell it as butter made from unadulterated milk or

3 People v. Arensberg, 103 N. Y. 388, 8 N. E. 736, 57 Am. Rep. 741. 4 People v. Phillips, 135 Mich. 395, 91 N. W. 616, 9 Detroit Leg. N. 393.

5 People v. Meyer, 44 N. Y. App. Div. 1, 60 N. Y. Supp. 415.

6 People v. Hillman, 58 N. Y. App. Div. 571, 69 N. Y. Supp. 66, 15 N. Y. Cr. Rep. 394.

7 State v. Bockstruck, 136 Mo. 335, 38 S. W. 317.

cream, and the sale of such substance as natural butter, does not prohibit a sale of an oleaginous substance not the product of the dairy and not made from milk or cream, unless the sale was with the intent to sell such substance as genuine natural butter.s