Justice Butler argued that due consideration makes it clear that the defendant did not claim that the jury could have found her guilty of violating the first clause of the statute; that the Court of Appeals did not rule on the question of whether such a first-clause conviction would be constitutional; and lastly, that the validity of the first clause was mentioned in the concurring opinion only upon the question of whether the second and third clauses must be found invalid if the first clause was to be found unconstitutional.