The appellant was convicted for a violation of the provisions of section 3 of chapter 458 of the Laws of 1885, which amended section 8 of chapter 183 of the laws of the same year.
The statute prohibits the intentional sale of any oleaginous substance not produced from milk or cream as butter made of such elements, and this act is just what the appellant did. He sold a substance which was not the product of milk or cream for butter and was convicted. Certain requests were made to charge, which were designed to secure a consideration .of the constitutionality of the section referred to, which contains some seemingly objectionable features, but the case does not demand any such review. There can be no doubt of the power of the Legislature to say that one substance shall not be sold for another, which it is made to resemble, for the reason that the prohibited act would be a deception and a fraud and clearly punishable as a crime against the Commonwealth. If the appellant had been convicted by proof merely of the possession of the prohibited product colored so as to resemble butter, the question of the power of the Legislature to pass the section would have been presented, but such was not the case. The statute was ample ^ to justify a conviction on the evidence, for, the reason assigned, namely: that it was designed to prevent imposition and to punish where it was practiced.
For these reasons the judgment appealed from must be affirmed.
Ordered accordingly.
Daniels, J., concurred; Davis, P. J., concurred in result