the manufacture or sale for food of any substitute for butter or cheese produced from pure unadulterated cream or milk, is unconstitutional.' And under a statute prohibiting the manufacture or sale of any article not produced from milk or cream, "in imitation or semblance of or designed to take the place of butter," it is not criminal to sell a substitute for butter, unless it is in imitation or semblance thereof. Under Laws 1885, ch. 458, § 3, making it an offense to make imitations of butter with intent to sell for butter, etc., unless the intent appears, a conviction cannot be sustained. But it seems that under Laws 1882, ch. 246, § 1, the offense of selling adulterated butter is committed, although there was no intent to deceive, and although defendant did not know that the article sold was not butter. In Oregon, in order to convict a person under Laws 1885, p. 128, § 3, which makes the selling, or offering for sale, of oleomargarine an offense, unless the same shall be plainly marked so as to establish its true characteristic, it is not necessary to prove any overt act of offering it for sale in an unidentified condition, but the mere possession of it, and placing it in a store with other articles held for sale, is sufficient to warrant a jury in deciding that the same was offered

affidavit, the summons, and entry of judgment, and that these show that the proceeding was before the magistrate as such, and not one in the court for the trial of small causes.-Bayles v. Newton, 51 N. J. L. 553. In a penal suit for the illegal sale of oleomargarine defendant claimed that the oleomargarine was not sold by his authority. The evidence showed that he said to his salesman: "That butter is not suiting our customers, and we had better not sell any more." Held, that the salesman's authority was not revoked-State v. Newton, 52 N. J. L. 369.

1 People v. Marx, 99 N. Y. 377; 52 Am. Rep. 34.

? People v. Arensberg, 103 N. Y. 388; 57 Am. Rep. 741, reversing 40 Hun 358.

People v. Kerin, 39 Hun 631. In an action under Laws 1885, ch. 183, § 19, to recover a penalty for the violation of section 7 of that act, as amended by chapter 458, § 2, relating to the selling of oleomargarine, the complaint alleged that the oleomargarine manufactured and kept was not manufactured or in process of manufacture when the act took effect, and it was proven that defendants had it on hand and for sale at the time the action was brought. Held, that the evidence was sufficient to justify a conviction without proof that it was not manufactured or in process of manufacture when the act was passed, in the absence of any explanation on the part of defendants.-People v. Briggs, 47 Hun 266. 4 People v. Mahaney, 41 Hun 26.

for sale.' In Pennsylvania, the act of May 21, 1885, (P. L. 23), commonly known as the "Oleomargarine Act," providing, among other things, that it shall be unlawful to sell, or offer or expose for sale," or have in "possession with intent to sell," any oleaginous substance designed to take the place of butter or cheese, is a police regulation, and, in an action to recover the penalty for a violation thereof, it is immaterial that defendant was ignorant that the substance he sold as butter was of the prohibited composition.' The serving of oleomargarine with a regular meal at a public restaurant, as a substitute for butter, which oleomargarine, though not eaten, is paid for as part of the meal and carried away by the customer, constitutes a sale thereof, within the prohibition of that act.' The provision of the act declaring void contracts for the sale of oleomargarine, has no application to a sale and delivery of that material made in another State, and cannot operate to prevent the recovery of the purchase money therefor in the courts of Pennsylvania from a purchaser there, to whom the material was shipped, and who intended to resell the same in violation of the act of 1885. In England, a prosecution under 50 and 51 Vict. ch. 29, for having unlawfully "exposed for sale by retail" a parcel of margarine without having attached thereto a label marked "Margarine," cannot be sustained upon evidence that margarine had been placed behind a screen in defendant's shop, in the ordinary course of business, where it could not be seen by a purchaser. The words "exposed for sale" mean exposed to the view of the purchaser.'

§ 480. Noxious and unsound food.-Selling unwholesome provisions is an offense indictable at common law. Persons engaged in the business of furnishing provisions for market are bound to use ordinary prudence and care to avoid the sale of

1 State v. Dunbar, 13 Or. 591. Com. v. Weiss, 139 Pa. St 247. * Com. v. Miller, 131 Pa. St. 118.

Braun v. Keally, 23 Atl. Rep. 389.

Crane v. Lawrence, 25 Q. B. Div. 152.

State v. Smith, 3 Hawks 378; 14 Am. Dec 594.

noxious and unsound food.' The offense of selling unwholesome beef, to be eaten and used as food, is committed as well by selling it to wholesale dealers, as merchandise to be resold by them, as by selling directly to the consumer.' Under Ohio Rev. St. § 7090, punishing the selling of adulterated provisions without a stamp showing their composition, it is no defense that the article sold was patented.' But a conviction for knowingly offering for sale adulterated food will be reversed where there is no evidence either that defendant knew the food was adulterated, or that he offered it for sale.* An indictment under Mass. Gen. St. ch. 166, § 3, charging one with unlawfully and fraudulently adulterating "a certain substance intended for food, to wit, one pound of confectionery," is fatally defective; "confectionery " being a generic word, including a great variety of kinds of articles usually found in a confectioner's shop.'

1 Hunter v. State, 1 Head 160; 73 Am. Dec. 164. 'People v. Parker, 38 N. Y. 85; 97 Am. Dec. 774.

Palmer v. State, 39 Ohio St. 236; 48 Am Rep. 429. Compare Re Brosnahan, 4 McCrary 1; 18 Fed. Rep. 62.

4 Cantee v. State, (Tex) 10 S. W. Rep. 757.

'Com. v. Chase, 125 Mass. 202. Acts 22d Gen. Assem. Iowa, ch. 79, provides that no person shall sell any lard, or any article intended for use as lard, which contains any ingredient but the pure fat of healthy swine, under any label bearing the words "refined," "pure." "family," unless every package in which the article is sold is marked "compound lard." Held, that an information charging a violation of such act is sufficient if it alleges, in substance, that defendant sold a package, or bucket, filled with an article intended for use as lard which contained other ingredients than pure fat of healthy swine, and that such bucket or package did not bear on the top or outer side the name, and proportion in pounds and fractional parts thereof, of each ingredient contained therein, as provided by the statute, without alleging that it was stamped "pure," "refined," "family," or "compound" lard.—State v. Snow, 47 N. W. Rep. 777.

CHAPTER LV.

BLACKMAILING AND EXTORTION.

§ 481. Constitutionality and construction of statutes.

482. Definitions.

483. What acts are indictable, generally.

484. The corrupt intent.

485. Threats to accuse of crime.

486. Threatening letters,

487. Taking excessive fees.

488. Extortion by pension agents. 489. Withholding pension money. 490. Indictment or information. 491. Evidence for the prosecution. 492. Matters of defense.

493. Variance.

494. Instructions to the jury.

495. Conviction and punishment.

§ 481. Constitutionality and construction of statutes.In California, a statute making it a misdemeanor for any pawnbroker to exact interest at the rate of more than two per cent a month is not within the constitutional prohibition of special laws regulating the rate of interest.' In Indiana, a statute providing, in substance, that any officer guilty of extortion shall, in addition to being deemed guilty of a misdemeanor, be liable on his bond for five times the illegal fees charged, is not unconstitutional as putting the party twice in jeopardy.' In Kentucky, "intimidating, alarming and disturbing any person," denounced in the act of April 11, 1873, imply the use of physical force or menace, and involve a breach of the peace. In New York, the exaction from a broker, of fees or duties on sales of imported merchandise, by the acts of 1846 and 1866, is repugnant to that provision of the U. S. constitution which authorizes Congress "to regulate commerce."

3

1 Ex parte Lichtenstein, 67 Cal. 359; 56 Am. Rep. 713.

2 State v. Stevens, 103 Ind. 55; 53 Am. Rep. 482.

3 Embry v. Com., 70 Ky. 439.

374.

People v. Moring, 3 N. Y. App. Dec. 539, affi'g 47 Barb. 642; 3 Keyes,

§ 482. Definitions.-Extortion is the unlawful taking by any officer, by color of his office, of any money or thing of value that is not due him, or more than is due, or before it is Under U. S. Rev. St. § 3169, punishing extortion and oppression by revenue officers under color of law, the term "extortion" has the same meaning as at common law; oppression is cruelty, unlawful exaction, or the use of excessive authority, and the intention of subd. 10 of the statute was to extend to revenue officers the rules of common law applicable to ministerial officers taking reward from one arrested, under promise of procuring his discharge.' Official extortion, as defined in art. 240 of the Texas Penal Code, is the willful demand and reception by any officer authorized by law to receive fees of office, or by any person employed by such officer, of "higher fees than are allowed by law" for the services in question. If no fees were allowed by law for the services in question, then no prosecution under this provision can be maintained; and an indictment is bad which shows on its face that the services were not services for which any fees were allowed by law.'

§ 483. What acts are indictable, generally.Where a person compels another to pay him the money due him by threats of violence, it is an offense under Iowa Code, § 3871.* A charge that a person has solicited sexual intercourse with the wife of another is a charge of immoral conduct, which, if true, would tend to disgrace him and subject him to the contempt of society. If a public officer, intrusted with the exercise of definite powers for the benefit of the community, wickedly abuse or fraudulently exceed them, he is punishable by indictment, though no injurious effects result to any individual from his misconduct. The crime consists in the public example in perverting those powers to the purposes of fraud and wrong which were committed to him as instruments of

1 U. S. v. Waitz, 3 Sawyer 473.

• U. S. v. Deaver, 14 Fed. Rep. 595. 3 Smith v. State, 10 Tex. App. 413. * State v. Hollyway, 41 Iowa 200. Motsinger v. State, 123 Ind. 498.