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 demurrer *Page 145 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.
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 not provide that whoever fraudulently sells, c., shall be punished; but whoever sells (without the use of any qualifying adjective whatever) shall be guilty of a fraud. We do not understand, therefore, why we should interpolate the word "fraudulently" into the statute when the Legislature has omitted it. *Page 146
But it is insisted that by the settled rules of pleading the indictment must allege that the sale was fraudulent or made with intent to defraud, etc. The rule, however, in regard to statutory crimes like the one we are dealing with here is that only where the technical words such as fraudulently, wilfully, knowingly,c., are used as a part of the description of the offense or as a descriptive element of the offense, are they necessary terms in the indictment. Wharton Cr. Pl. Pr. sec. 269, 255; Kearney v. State, 48 Md. 23; Davis v. State, 39 Md. 355; State v.Elborn, 27 Md. 483; Cearfoss v. State, 42 Md. 403;Mincher v. State, 66 Md. 227; Parkinson v. State,14 Md. 184; Carroll v. State, 63 Md. 551. In the case last cited it was held that when a licensed dealer in spirituous liquors was indicted for unlawfully selling liquor to a minor he cannot escape the penalty of the offense by proving that the sale was made by his agent during his absence, without his knowledge and contrary to his instructions given in good faith. The provisions of the Code we are now considering are, as was the law construed in Carroll v. State, supra, police regulations. "For the violation of a statute of this nature" we said in that case "it is not necessary to allege the scienter in the indictment, because it is not made an ingredient, by the statute, that the thing shall be knowingly and wilfully done, to make the violation of the statute an offense. As ignorance of the existence of such a law will not excuse, so also ignorance of a fact necessary to be known to avoid a violation of the law will not excuse." See also 3 Greenleaf on Evidence, sec 21, notea.
We think the question is too clear for futher discussion. The judgment appealed from must be affirmed.
Judgment affirmed with costs.
(Decided December 5th, 1901.) *Page 147