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State v. Barnett

Decided: May 17, 1932.

THE STATE OF NEW JERSEY, DEFENDANT IN ERROR,
v.
MAX BARNETT, PLAINTIFF IN ERROR



For the state, Louis A. Repetto, prosecutor of the pleas.

For the plaintiff in error, Cole & Cole.

Before Gummere, Chief Justice, and Justices Parker and Case.

Case

The opinion of the court was delivered by

CASE, J. The plaintiff in error, hereinafter referred to as the defendant, was indicted, tried and convicted in the Atlantic County Court of Quarter Sessions for the violation of section 196 of the Crime act. 2 Comp. Stat., p. 1802. That statute provides:

"Any person who shall knowingly and willfully forge or counterfeit, or cause or procure to be forged or counterfeited, upon any goods, wares or merchandise, the private stamps or labels of any mechanic or manufacturer, with intent to defraud the purchasers or manufacturers of any goods, wares or merchandise whatsoever, or who shall vend any goods, wares or merchandise, having thereon any forged or counterfeited stamps or labels, purporting to be the stamps or labels of any mechanic or manufacturer, knowing the same to be

forged or counterfeited, without disclosing the fact to the purchaser, shall be guilty of a misdemeanor."

The indictment contained two counts, each of which followed closely the pertinent words of the statute. The first count charged the act of forging and counterfeiting, upon certain wares and merchandise, the private stamp and label of Parke, Davis and Company, and the second charged the vending of the wares bearing such forged and counterfeited stamp and label. The verdict found the defendant guilty on both counts. The defendant assigns fourteen alleged errors, the first nine of which need not be considered for the reason that the assignments, having to do with the admission or striking of evidence, ought to, and do not, point out the precise evidence which was erroneously admitted or which the court erroneously refused to strike. State v. Herron, 77 N.J.L. 523, 525; State v. Blaine, 104 Id. 325.

The next four assignments all focus on the proposition that there was no evidence to justify a conviction under either count of the indictment and are grounded in the court's refusal to direct a verdict or to charge in language equivalent to a direction.

It is without contradiction that the defendant's place of business is and was at Atlantic City; that he went to New York and there procured the printing of counterfeited reproductions of labels, cartons and descriptive "insert" bearing the name of Parke, Davis and Company and used by the latter concern in the marketing of certain pills sold under the name of "Alophen." The printing of the counterfeited matter was procured by, done for and delivered to the defendant in the city of New York; and if the crime first defined in the statute were limited to these acts, the proof would, as the defendant asserts it does, fail to justify a conviction in the State of New Jersey. But we construe the statute otherwise. The statutory language is: "Any person who shall knowingly and willfully forge or counterfeit or cause or procure to be forged or counterfeited, upon any goods, wares or merchandise, the private stamps or labels * * *."

Assuming the defendant's argument to be sound, the words "upon any goods, wares or merchandise," become meaningless, are surplusage and must be disregarded. Not only do the general rules of construction frown upon a needless invalidating of any part of the statute, but the very framework of the sentence is persuasive of trenchant significance. It is not merely the counterfeiting of a label that constitutes the crime, but counterfeiting "upon the goods." We are brought to the conclusion that the act of knowingly, and with the necessary fraudulent intent, combining goods and forged label in such fashion as to constitute a counterfeit product ...


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