State v. Maurer
| Citation | 164 S.W. 551,255 Mo. 152 |
| Parties | THE STATE v. JACOB MAURER, BENJAMIN SURKAMP and THOMAS SHORTELL, Appellants |
| Decision Date | 17 February 1914 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis Court of Criminal Correction. -- Hon. Benjamin J. Klene, Judge.
Affirmed.
Zachritz & Zachritz for appellants Surkamp and Maurer.
(1) The information charges no violation of law. In order to charge the offense under section 4835, the information should have alleged a sale, or offer of sale, of the imitation substitute for butter without packing the same in firkins, tubs or paper packages, with the true name of said imitation substitute clearly and indelibly branded, marked or labeled thereon. It is fundamental that an indictment or information predicated upon the provisions of a statute must charge the offense in the language of the statute, and the allegation must be sufficient to fully inform the defendant of the nature and character of the offense he is called upon to answer on his trial. State v. Watson, 216 Mo. 420; State v Gibbs, 129 Mo.App. 700; State v. Haney, 130 Mo 95-98; State v. Lentz, 184 Mo. 223. (2) The court should have sustained defendant's demurrer at the close of the State's case. To authorize a conviction for a statutory crime every essential element of the offense provided for by the statute must be established by the State. State v. Dines, 206 Mo. 649; State v Lentz, 184 Mo. 223. (3) The evidence, including defendant's testimony, all shows that defendant was not present on the day of the sale, had no knowledge of what transpired; that the firkins containing oleomargarine were labeled such; that he had a government license, and that he had not given consent to the sale by this clerk, but, on the contrary, that his instructions to all of his clerks, including this one, had been to sell oleomargarine for oleomargarine and butter for butter. State v. Meagher, 49 Mo.App. 571; State v. William James, 63 Mo. 570. (4) The court should have sustained a demurrer at the close of the whole case. State v. Meagher, 49 Mo.App. 571; State v. James, 63 Mo. 570.
Fauntleroy, Cullen & Hay for appellant Shortell.
(1) The information is a mere copy of a statute which does not individuate the offense, and is insufficient. State v. Miner, 233 Mo. 312; State v. Burke, 151 Mo. 142; United States v. Cruickshank, 92 U.S. 542; State v. Meysenburg, 171 Mo. 25; State v. Krueger, 134 Mo. 262; State v. Watson, 206 Mo. 420; State v. Stowe, 132 Mo. 199; State v. Fraker, 148 Mo. 143; State v. Barbee, 136 Mo. 440; State v. Pickett, 174 Mo. 668; State v. Cameron, 216 Mo. 420. (2) The information does not allege or specify what the pretense was. It is, therefore, not sufficiently definite to inform the accused of the nature and cause of the accusation against him as required by Constitution, art. 2, sec. 22; People v. Brady, 56 N.Y. 182; State v. Martin, 226 Mo. 538; State v. Pickett, 174 Mo. 663; State v. Fraker, 148 Mo. 143; State v. Levy, 119 Mo. 434; State v. Kain, 118 Mo. 5; State v. Chapel, 117 Mo. 639; State v. Fleming, 117 Mo. 377; State v. Cameron, 117 Mo. 371; State v. Benson, 110 Mo. 18; State v. Terry, 109 Mo. 601; State v. Clay, 100 Mo. 571. (3) In the information no person is named to whom the sale was made. State v. Miner, 233 Mo. 312; Robertson v. City, 38 N.J.L. 72; People v. Burns, 6 N.Y.S. 611; Flannagan v. Plainfield, 44 N.J.L. 119; State v. Burke, 151 Mo. 144; State v. Martin, 108 Mo. 117. (4) For aught that appears in the information, the defendant may have been in entire ignorance that the package was not butter. The information should allege that the defendant knew the article was imitation butter and pretence was false. Scienter is not alleged. Com. v. Boynton, 12 Cush. (Mass.) 500; State v. Roberts, 201 Mo. 722; State v. Bradley, 68 Mo. 140; State v. Phelon, 159 Mo. 127; State v. DeLay, 93 Mo. 98; State v. Peacock, 31 Mo. 413; People v. Behee, 51 N.W. 515. (5) There is no proof in the case tending to prove that the oleomargarine sold was a substitute for butter and hence the court erred in assuming, in the instruction given, that oleomargarine was a substitute for butter and erred in refusing defendant's instruction, covering this issue, and erred in overruling defendant's request for a verdict of acquittal. People v. Meyer, 60 N.Y.S. 415; People v. Wahle, 109 N.Y.S. 629; People v. Schnizius, 113 N.Y.S. 313; Bennett v. Carr, 96 N.W. 26; People v. Simpson, 114 N.Y.S. 945; People v. Arensberg, 103 N.Y. 388, 57 Am. Rep. 741. (6) The evidence in this case was wholly insufficient to prove that the article sold was "imitation butter" or a substitute for butter. Authorities, supra; People v. Wahle, 109 N.Y.S. 629; People v. Hillman, 69 N.Y.S. 66.
John T. Barker, Attorney-General, and Paul P. Prosser for the State.
(1) A cardinal rule in the construction of statutes is to ascertain and give effect to the intention of the Legislature. For the purpose of discovering the legislative intent, it is always proper, and often necessary, to consider the history of the statute, the reason of its enactment, and the prior state of the law on the subject to which the statute relates. State v. Eckhardt, 232 Mo. 54; Decker v. Diemer, 229 Mo. 324. (2) The object of section 657 is to protect the public against fraud in the sale, as butter, of any substitute therefor. People v. Freeman, 242 Ill. 373; State v. Addington, 17 Mo.App. 225, 70 Mo. 110; State v. Bockstruck 136 Mo. 356. (3) The object of the statute is in keeping with the general course of legislation in this State with reference to preventing fraud and deception in the manufacture and sale of oleomargarine and other substitutes for butter. Laws 1877, p. 319; Sec. 1599, R.S. 1879; Laws 1881, p. 120; Laws 1885, p. 149; Laws 1887, p. 174; Secs. 3885 and 3886, R.S. 1889. (4) Having ascertained the object of the statute, it is the duty of the court so to construe it as to further the remedy and suppress the evil. Decker v. Diemer, 229 Mo. 324; Keeney v. McVoy, 206 Mo. 65; State ex rel. v. Gmelich, 208 Mo. 159; 36 Cyc. 1110. (5) While criminal statutes must be strictly construed, yet courts are not authorized to so interpret them as to defeat the manifest intent and purpose of the Legislature. State v. Woodward, 182 Mo. 407; State v. Walker, 129 Mo.App. 374; Groff v. State, 171 Ind. 547; State v. Whitaker, 160 Mo. 68; Yall v. Snow, 201 Mo. 521; Riggs v. Railroad, 120 Mo.App. 349; Weirich v. State, 22 L.R.A.(N.S.) 1221. (6) Construction and interpretation have no place or. office where the language of a statute is unambiguous and its meaning evident. Clark v. Railroad, 219 Mo. 534; Henry, etc., Co. v. Evans, 97 Mo. 52; State ex rel. v. Riley, 203 Mo. 187. (7) This court will take judicial notice that the term "oleomargarine" is of equivalent import with the statutory definition of "imitation butter." Schollenberger v. Pennsylvania, 171 U.S. 9; 29 Cyc. 1475; Black's Law Dictionary; Standard, Century and Webster's New International Dictionaries; Act Congress, Aug. 2, 1876, ch. 240; Laws 1877, p. 174. (8) Where the information charges the offense in words of equivalent import with the statutory words, it is sufficient. State v. Williams, 21 Mo. 496; State v. Dengolensky, 82 Mo. 44; State v. Effinger, 44 Mo.App. 83. (9) The informations sufficiently individuate the offense, are in the language of the statute creating it and clearly apprised the defendants of the charge which they were called upon to answer. State v. Presbury, 19 Mo. 345; State v. Kennon, 21 Mo. 263; State v. Van Wye, 136 Mo. 237; State v. Bockstruck, 136 Mo. 35; State v. Dewitt, 152 Mo. 84; State v. West, 157 Mo. 316; State v. Hall, 164 Mo. 531; State v. Hendrickson, 165 Mo. 267; State v. Lee, 228 Mo. 492; State v. Hilton, 248 Mo. 530; State v. Becker, 248 Mo. 562; Rasch v. State, 89 Md. 755; United States v. Hess, 124 U.S. 483. It may not be amiss to suggest, in this connection, that the same nicety is not required in drawing informations in cases of minor offenses as is required in charging common law felonies. State v. Fletcher, 18 Mo. 427; State v. Nelson, 19 Mo. 396; State v. Hogle, 156 Mo.App. 372; State v. Rouelle, 137 Mo.App. 623.
Appellants were prosecuted in the court of criminal correction, in the city of St. Louis, upon separate informations charging them with violations of section 657, Revised Statutes 1909 (), in having sold oleomargarine under the pretense that the same was butter. Aside from formal matters and that the defendants in the Maurer and Surkamp cases made the sales by clerks, the informations are identical in alleging that the defendant "did unlawfully sell and offer for sale a substance designed to be used as a substitute for butter, to-wit, oleomargarine, under the name of and under the pretense that the same was butter," etc.
Upon trials before juries, each of the appellants was found guilty, and Maurer was fined fifty dollars, and the others one hundred dollars each.
These cases, as Mrs. Malaprop might have said, have been "pendulating" between this court and the St. Louis Court of Appeals since judgments were rendered therein by the trial court in 1910, experiencing a difficulty not unlike that encountered by Noah's dove on its first voyage -- their ambulatory history being thus noted in the records: The constitutional validity of the statute upon which the prosecutions were based, having been questioned in the motions in arrest of judgment, the cases were appealed to this court, where it was held that the constitutional question had not been timely raised and the cases were ordered transferred to the St. Louis Court of Appeals. Upon hearings there, the judgments of the trial court...
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