The appellant was indicted for a violation of the laws of the State, relating to the manufacture and sale of a substance known as oleomargarine, which is not a product of the ■dairy, and although the indictment contained several counts, *142the people elected to proceed under the first count, which was-framed upon the act of '1885, chapter 458. ■ It was conceded by the prosecution that the compound,' which was sold by the: appellant as dairy butter, and which was not such, was purchased by him as and for butter, was believed by him to be-butter, and was sold as butter in that belief. This concession disposes of the conviction. It cannot be maintained. The-chapter referred to (supra), by section 3 amends section 8 of chapter 183 of the Laws of 1885, and by its terms prohibits the manufacture by any person of any oleaginous substance-not produced from milk or cream, with intent to sell the same ■ for butter or cheese, made from unadulterated milk or cream, and from having the same in his possession, or offering the same - for sale with such intent, and declares that no article or substance or compound, so made or produced, shall be sold forbutter or cheese, the product of the dairy. This section is the only one under which the appellant can be held to account, if ‘ ■ at all, and it will at once occur to the reader that the violation of its provisions depends upon an intent to impose one article-for another, both in the manufacture and in the sale of the simulated article. Ho person shall manufacture the substance-described with intent to sell the same for butter, or have the same in possession, or offer the same for sale with such intent. The appellant did not violate this law. He bought the article-, he sold for butter, believed it to be butter, and sold it for butter. He did not intend to sell oleomargarine, or any other substance, for butter when it was not butter. He intended to sell what he-believed to be butter as and for butter, and bis intention, and his acts leading to it, were lawful and unexceptionable under-the provisions of the section referred to. He must intend to dawrong ; that is, to sell some other substance than dairy butter for butter, which he does not do when he buys it as butter, receives it as such, and sells it in such belief. It may be said that underfurther provisions of the section referred to than those named, he may nevertheless be convicted, for the reason that, having-such a compound in his possession as he sold, such possession is declared to be conclusive-evidence of an intent to sell the same for butter, but this answer is not responsive. The latter*143provisions relate to the coloring, by any process, whereby the product shall be made to resemble butter, and when that is added to the manufacture, and the article prohibited is in possession, such possession is conclusive evidence of an intent to sell The effect of this extraordinary legislation is, that, in order to convict a person for a violation of its acts in relation to oleomargarine, there must be an intent to sell the same for dairy butter; but if the product be colored so as to resemble butter, then the intent required exists as the result of the coloring. In this case there was no proof on that subject, and hence the statute does not supply the proof of intent, which would have been furnished if evidence of the use of coloring matter had been given. This view renders it unnecessary to consider the constitutionality of the provisions making possession an intention to do wrong; that is, to sell one article for another, and thus to perpetrate a fraud It may well be seriously doubted whether the Legislature can say that an article which may be lawfully manufactured and sold, when so manufactured and in possession, may be regarded as designed to be sold for something else, and, therefore, for a fraudulent and criminal purpose. This would, in effect, prohibit the manufacture which the Legislature has not the power to accomplish, it would seem. People v. Marx, 99 N.Y. 334; 3 N.Y. Crim. 200.
Without further discussing this element of the case, however, the decision must be a reversal of the conviction for the reasons •assigned
Ordered accordingly.
Davis, P. J., and Daniels, J., concur.