The record discloses an error in the charge of the trial judge to the jury. ■ He submitted to them the bare *78 question whether the defendant had manufactured or sold oleomargarine not made from milk or cream, and charged that if he did he was guilty under the law. The language of the court was especially clear and decisive. The jury were told: “ If you believe that the defendant did sell this article called oleomargarine, and that it was not a producttion of pure, unadulterated milk, or cream of the same, then he committed an offense under the law. The simple question for you to decide is, did this defendant or did he not sell an article known as oleomargarine, and was that article made of pure, unadulterated milk and cream ? If he did so sell that article, and if it was not so made, he is guilty of a violation of this statute.”
It would be difficult to make the direction plainer. But the guilt of the prisoner did not and could not lie in the simple manufacture and sale of the article, and depended upon the further inquiry whether it was manufactured in imitation or semblance of butter; whether, by the use of ingredients not necessary or essential to the article itself, it was sought to accomplish such imitation or resemblance. The proof showed that when oleomargarine was put upon the market in its normal condition, and before the addition of ingredients designed to modify its natural tastes and.color, it was of a pearl-white hue, resembling tallow, but that coloring matter was sometimes added. It was to prevent such or similar imitations that the act of 1885 was framed. Section . 7 forbids two things : the manufacture, not from milk or cream, of an article or product in imitation or semblance of butter, or designed to take the place of butter. The latter clause is ineffectual, as we held in the Marx Case (99 N. Y., 377; 3 N.Y., Crim. 200). It was under the first alone that the defendant could be convicted, and yet the charge of the court ignored this element of offense entirely, and missed the precise point of the accusation. Whether the oleomargarine manufactured by the defendant was or was not an imitation or semblance of butter became the material inquiry, but was withheld from the jury, and they were instructed to convict upon proof of the manufaet *79 ure and sale of the article known as oleomargarine. Practically that was a ruling, as matter of law, that the article thus known is an imitation of butter, whereas it may or may not be; and the question whether, in a given case, it is or is not, is one for the jury. A sample of the product manufactured by the defendant was produced before them, and open to their observation. The vital point of the alleged crime is the manufacture and sale of an article which is an imitation and semblance of butter, and so is calculated to deceive, and indicates a deceptive purpose, immediate or ultimate; and that is a question of fact which the court was not authorized to determine as a matter of law, but, upon the evidence produced, should have submitted to the jury.
It is said that the imitation was admitted, and the ease tried on that assumption. I am unable to agree in that proposition. I do not think the imitation was conceded, and a distinct exception was taken to the charge, which ignored the fact of imitation as essential to the crime, and argued before us on the appeal.
For this error, without considering the constitutional question, the judgment should be reversed, and a new trial ordered.
Huger, C. J., and Rapallo and Daneorth, JJ., concur.
Dissents on the ground that it was proved and assumed on the trial that coloring matter had been added to the substance called “ oleomargarine ” to give it a yellow color resembling natural butter, and that the sale of oleomargaine, so colored, constitutes an offense under the act, within the competency of the legislature to declare.