say this defense could be used as to offenses mala in se. What distinction, then, could be found among those that are mala prohibita? It would seem absurd for a person indicted for selling intoxicating liquors to be allowed to prove his ignorance of the offense; so for selling lottery tickets, horse racing, for violation of the Sabbath, for cruelty to animals, etc. Nor would he be excused, should he prove that even counselors at law had advised him that he might do all these things."

In People v. Weed, 29 Hun, 628, May, 1883, Barnard, Justice, says: "The prisoner was indicted for bigamy. The offense was clearly proven. The prisoner married one Louisa Bryson, in Westchester county in this State, in 1875, and he again married one Carrie Megol in May, 1881, in Westchester county. Louisa Bryson was at the date of the second marriage and is yet living. It was proven upon the trial that, before the second marriage, the prisoner and his wife signed articles under seal, in Connecticut, that if either party should apply for a divorce the other would not oppose the application and would not appear against the petitioning party. A question was put by the prisoner's counsel to him whether the justice of the peace in Connecticut, who witnessed the paper, did not tell him that the paper was in legal effect a divorce. The same question was put to another witness to the paper. These questions were overruled and an exception taken to the decision. This presents the only question in the case. We think it was not an erroneous ruling. The general rule is that all are presumed to know the law, and that ignorance of the law excuses no one from crime. The particular crime alleged was fully made out. The two marriages were understandingly entered into by the prisoner, with full · knowledge of the facts which, by statute, establishes the offense. The prisoner, when he married the second time, knew that his first wife was still living. Neither the deputy sheriff who drew the paper nor the justice who read it over could destroy the

effect of an intentional violation of a statute, by advice that such violation could be lawfully done.

"The conviction, therefore, should be affirmed.

Dykman and Pratt, JJ., concurred.

"Conviction affirmed."

In New York Fire Department v. Buhler, 35 N. Y. 117, an action for a penalty for putting up any wooden building other than a dwelling-house, one of the firewardens saw the structure in building, but did not object. Held, that that did not justify the defendant, as he must be guided by the law which he was presumed to know.

The charge against the defendant in this case is larceny from Gallagher by false representation.

The act which he did and which constitutes the crime was illegal and in violation of the Constitution and of the law. The defendant knew this, presumptively, if not actually, and he is bound by the presumption. He cannot be heard in his defense to say that he did not know it, and he cannot say that former practice of the department justified him.

If the defendant on trial for his liberty is so effectively bound by this presumption, can it not be said that Gallagher is also as effectively bound by it. I am of the opinion that the legal presumption conclusively binds both.

This conclusion brings the case within the principles reiterated in People v. Tompkins, 186 N. Y. 413. There it is held that "The rule, that when a person is induced either by trick or device or false representations to part with his property for an illegal purpose, a conviction cannot be had of the person charged with the offense, is firmly established in this state and cannot be changed by the courts without ignoring constitutional rights and usurping legislative power."

In People v. Livingston, 47 App. Div. 285, the court says: "We venture to suggest that it might be wise for the Legislature to alter the rule laid down in McCord v. People. If the rule

as to larceny by false pretense and by trick or device, were made the same as the common-law rule that stealing property from a thief is the same crime as stealing it from the true owner, we think this class of cases might be much more successfully dealt with. We know that a feeling prevails to some extent in the community that it is unjust that one offender should be punished and his co-offender obtain immunity. This feeling is absolutely unreasonable. Where one offender is punished and another escapes, there may properly be a feeling of dissatisfaction, but the dissatisfaction should not be because one man is in prison, but because the other man is out."

This is quoted and emphasized in the Tompkins case.

I had at one time thought that the proper course for me to pursue in this case was to let it go to the jury and, in case of a verdict of "guilty," grant an order in arrest of judgment, and thus give the people an opportunity to appeal; but, having the firm conviction that I have as to the law, what would I say to the jury? I would have to instruct the jury that the law was entirely different from what I believe it to be. This would be unjust to the defendant and unfair to the jury and to myself; and the Appellate Division and the Court of Appeals have evinced a disposition not to distinguish in avoidance of this rule but lay the matter at the doors of the Legislature.

Now, gentlemen of the jury, I have determined to grant Mr. Steele's motion to advise you to discharge this defendant for the reason that, in my opinion, there is not sufficient evidence to justify his conviction as a matter of law.

Motion granted.

COURT OF GENERAL SESSIONS.-CO. OF NEW YORK.

June, 1907.

THE PEOPLE v. JOSEPH SOMMER.

(55 Misc. 55.)

EVIDENCE-FILLING, ETC., MARKED SIPHONS-LAWS 1896 CHAP. 933 § 2. Where it was proved that one who was neither a junk dealer nor a dealer in second-hand articles, but whose business it was to fill siphons with aerated water for dealers, had in his possession a box containing six siphons marked and distinguished with the name marks and devices of a corporation of which a description had been filed and published as required by Laws 1896, ch. 933, which box stood near the filling machine but the siphons in which it was not shown were filled by him, such proof was not sufficient to convict him of having filled, used, bought, sold, given, taken or otherwise disposed of or trafficked in said siphons in contravention of the statute.

APPEAL from a judgment of a city magistrate, convicting defendant of a violation of section 2, chapter 933, Laws 1896.

Alexander A. Mayper, Deputy Assistant District Attorney, for respondent.

Aaron A. Feinberg, for appellant.

ROSALSKY, J. This is an appeal from a judgment of a city magistrate, convicting the defendant of a violation of section 2 of chapter 933 of the Laws of 1896, in "that the defendant did on the 6th day of December, 1906, unlawfully fill, use, buy, sell, give, take or otherwise dispose of and traffic in said six siphons at the city and county of New York, in the county and State of New York, which and each of which said six siphons were and was so marked and distinguished with and by the name, marks and devices of the said corporation, to wit: 'Carl H. Schultz,' of which a description had been so filed and published as afore

said, and upon each of which said siphons there were therein and thereon the said name, marks and devices of said corporation, contrary to and in violation of law."

To sustain the charge against the defendant, one John Keidel, employed by the Bottlers' Exchange, testified that on the 6th day of December, 1906, he entered the premises No. 234 Henry street, borough of Manhattan, county of New York, and in the absence of the defendant "found a box near the filling machine containing six Schultz's siphons and three Light's," and also that he was not present when the bottles were filled with seltzer. The defense established that the defendant was engaged in the business of filling siphons with aerated water for other dealers and not for himself. The siphons which were to be filled with aerated water were brought to the defendant's place of business by dealers engaged in the business of selling and trafficking in the water, and at times the boxes contained siphons filled with aerated water.

Subdivision 3 of this statute provides "that the use by any person other than the person or persons, corporation or corporations, whose device, name or mark shall be or shall have been upon the same without such written consent or purchase as aforesaid, of any such marked or distinguished bottle, box, siphon, tin or keg, a description of the name, mark or device as herein provided, for the sale therein of soda waters shall, and is hereby declared, to be presumptive evidence of the said unlawful use, purchase and traffic in of such bottles, boxes, siphons, tins or kegs."

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Another section of this subdivision declares "or the having by any junk dealer or dealers in second-hand articles, possession of any such bottles, boxes, siphons shall, and is hereby declared, to be presumptive evidence of said unlawful use, purchase and traffic in of such bottles, boxes, siphons, tins or kegs."

It will, therefore, be observed that, with reference to a junk