(dissenting). I am unable to concur in the majority opinion in so far as it holds that there was no error in the ruling of the trial court with respect to the first count of the indictment. In my opinion the count was good as a pleading, not for the reason stated by the majority, but for the reason that, under the allegation that defendants carried on the business of manufacturers of oleomargarine, evidence ivas admissible to show that defendants were any kind of manufacturers defined by law. In other words, the pleader was not obliged to plead evidence. I dissent from the majority opinion in so far as it holds that the defendant may be convicted under the first count merely upon evidence from which the jury might find that said defendants at a certain time and place mixed with oleomargarine artificial coloration that caused such oleomargarine to look like butter. There is no evidence in the record that the defendant Garrett ever engaged in the business of selling, vending, or furnishing oleomargarine for the use and consumption of others, or that he ever had a license so to do. There is no evidence that the defendant Vermont ever engaged in the business of selling, vending, or furnishing oleomargarine for the use and consumption of others. There is no evidence tiiat either defendant ever sold any oleomargarine colored in the way mentioned in the statute either by themselves or any one else. It is unnecessary to determine on this record whether the words “any person” used in the statute mean a licensed dealer or not. The majority opinion concedes, and the law says, that it must be “any person that sells, vends, or furnishes.”
Whether these words be construed to mean licensed dealers, or persons who are engaged in the business of selling, vending, or furnishing unlawfully without license, or whether it means the sale of oleomargarine lawfully or unlawfully by a person who has mixed artificial coloration with oleomargarine, it still remains true that there is no evidence in the record to bring- the defendants within either construction. If we are to indulge in presumptions, they must be those of innocence, not of guilt. The defendants were captured in the loft of a barn, on the first floor of which colored oleomargarine was found, together with empty tubs and artificial coloration. On this showing the defendants *798were convicted of being manufacturers of oleomargarine by mixing artificial coloration with uncolored oleomargarine.
In my opinion the collection of the revenue does not require nor the due administration of justice permit such a result. The judgment on the first count should be reversed, and a new trial ordered.