p. 445The People of the State of New York, Respondent, v. Isidor Shifrin, Appellant.decided October 20, 1950.
p. 446Samuel Safronoff and Sophie Gluck for appellant.
I. “ Pigeon feed ” is food within the use of the term in subdivision 1 of section 2147 of the Penal Law. (Union Dairy Co. v. United States, 250 F. 231 ; City of Chicago v. Arbuckle Bros., 344 Ill. 597 ; Commission v. Pflaum, 236 Pa. 294 ; State v. Ohmer, 34 Mo. App. 124 ; Savage v. Jones, 225 U. S. 501 ; Jewett Bros. & Jewett v. Smail, 20 S. D. 232 ; City of Chicago v. Chicago Beverage Co., 372 Ill. 33 ; Aetna Cas. & Sur. Co. v. Kimball, 206 Iowa 1251 ; McCarthy v. State, 170 Wis. 516 .) II. Defendant’s business being a farmers’ market, may sell on Sundays, at any time of the day, merchandise usually sold by them. (Penal Law, § 2147.)Frank A. Gulotta, District Attorney (Henry P. De Vine of counsel), for respondent.
I. Pigeon feed is not food within the meaning of the word “ food ” as used in section 2147 of the Penal Law. (Lindenmuller v. People, 33 Barb. 548 ; People v. Dunford, 207 N. Y. 17 ; People v. Havnor, 149 N. Y. 195 .) II. Defendant’s business is not a farmers’ market. (Ketchum v. City of Buffalo, 14 N. Y. 356 ; Taggert v. City of Detroit, 71 Mich. 92 ; People ex rel. Guernsey v. Somers, 153 App. Div. 623 , 208 N. Y. 621 ; Dubuc v. Lazell, Dalley & Co., 182 N. Y. 482 ; Young v. United States, 315 U. S. 257 ; Ford v. Dilley, 174 Iowa 243 .)Defendant was convicted of selling “ a bag of pigeon feed ” before 10:00 a.m. on a Sunday, in alleged violation of section 2147 of the Penal Law. That section, which prohibits generally the sale of any property on Sunday, contains, among others, the following exception: “ 1. Articles of food may be sold, served, supplied and delivered at any time before ten o ’clock in the morning ’ ’.
“ Food ” is uniformly defined by lexicographers as including nutriment for animals as well as humans (see, also, Penal Law, §§ 185, 187). Inasmuch as the Legislature has not limited the word “ food ” to that meant for human consumption only (as, e.g., Penal Law, § 1760), we may not impute to it an intention
p. 447to render the act charged a crime. “ Acts otherwise innocent and lawful, do not become crimes, unless there is a clear and positive expression of the legislative intent to make them criminal. The citizen is entitled to an unequivocal warning before conduct on his part, which is not
malum in se, can be made the occasion of a deprivation of his liberty or property.”
(People v.
Phyfe, 136 N. Y. 554 , 559;
People v. Wallace & Co., 282 N. Y. 417 ;
People v. Adamkiewicz, 298 N. Y. 176 ;
Winters v. New York, 333 U. S. 507 , 515-516.)
The judgments should be reversed and the information dismissed.
Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.
Judgments reversed, etc.