State v. Bockstruck

• Decision Date: 15 December 1896
• Citation: 136 Mo. 335,38 S.W. 317
• Parties: STATE v. BOCKSTRUCK.
• Court: Missouri Supreme Court

38 S.W. 317

136 Mo. 335

STATE v. BOCKSTRUCK.

Supreme Court of Missouri, Division No. 2.

December 15, 1896.

IMITATION OF BUTTER — ILLEGAL SALE — EVIDENCE — INDICTMENT — NEGATIVING EXCEPTION — CONSTITUTIONAL LAW — TITLE OF STATUTE.

1. A sale by a clerk in defendant's store of imitation of butter, apparently in the ordinary course of business, is prima facie evidence of a sale by defendant.

2. Under Act April 19, 1895, prohibiting the manufacture or sale of any substitute for butter with which is combined any annatto or compound of the same, or any substance or substances for the purpose or with the effect of imparting thereto a yellow color, so that such substitute shall resemble yellow butter, it is immaterial what substance is used to give the substitute such resemblance.

3. In a prosecution under such act, it is unnecessary to prove what substance was used to give the substitute the resemblance to yellow butter.

4. Under Act April 19, 1895, prohibiting the manufacture or sale of substitutes for butter, colored to resemble yellow butter, and providing that the act shall not prohibit the coloring of such substitute, manufactured for sale outside of the state, an indictment for violation thereof need not negative the exception.

5. Act April 19, 1895, — entitled "An act prohibiting the coloring yellow of any substance designed to be used as a substitute for butter, to prohibit the manufacture, sale, keeping for sale and fraudulent use of substances designed * * * to be used as a substitute for butter," — sufficiently expresses in the title the subject of the act, as applied to section 5, which requires such substances to be marked in a certain manner, and provides that persons having such substance in their possession unmarked shall be presumed to have known its character.

6. The fact that section 5 of the act of April 19, 1895, which requires imitation butter to be marked in a certain manner, is unconstitutional, does not render the act unconstitutional as

to the other sections which prohibit the manufacture or sale of such substance.

7. Act April 19, 1895, which prohibits the manufacture or sale of imitation butter, does not violate Const. art. 4, § 53, which prohibits the passage of any special law changing the rules of evidence, because it provides that whosoever shall have possession of imitation butter, contrary to the provision of the act, shall be construed to have the property with intent to use it as a means of committing a public offense.

8. Act April 19, 1895, prohibiting the manufacture and sale of substances in imitation of butter, is within the police power of the state.

9. Bill of Rights, § 28, providing that the right of trial by jury shall remain inviolate, does not prevent an accused from waiving, under statutory provisions, his right to a jury trial in a misdemeanor case.

10. The fact that the provision of the act of April 19, 1895, relating to the sale of imitations of butter, which provides for the punishment of each subsequent offense, is unconstitutional, does not render the act unconstitutional, as applied to first offenses.

Appeal from St. Louis court of criminal correction; David Murphy, Judge.

Henry Bockstruck was convicted of a crime, and appeals. Affirmed.

This prosecution is based on an act of the legislature approved April 19, 1895, and found in the laws of Missouri of that year (page 26 et seq.), which act will be presently quoted. The amended information on which defendant was prosecuted is the following: It charged that he, "on the 31st day of July, 1895, did unlawfully sell, keep for sale, and offer for sale a certain imitation of butter, to wit, a substance which was then and there composed of animal fat, vegetable oil, and other substances compounded with butter, and also compounded with other substances which are to the informant unknown, for the purpose and with the effect of imparting thereto a yellow color and a shade of yellow, so that the same then and there resembled and was in imitation of genuine yellow butter," etc.

The statute to which reference has been made is as follows:

"An act prohibiting the coloring yellow of any substance designed to be used as a substitute for butter; to prohibit the manufacture, sale, keeping for sale and fraudulent use of substances designed as imitation butter; to regulate the manufacture, sale and keeping for sale of any substance designed to be used as a substitute for butter, and making an appropriation for carrying out the provisions of this act.

"Be it enacted by the general assembly of the state of Missouri, as follows:

"Section 1. That for the purpose of this act, every article, substitute or compound, other than that produced from pure milk, or cream from the same, * * * to be used as a substitute for butter made from pure milk, or cream from the same, is hereby declared to be imitation butter.

"Sec. 2. No person shall combine any animal fat or vegetable oil or other substance with butter, or combine therewith or with animal fat or vegetable oil or combination of the two, or with either one, or with any other substance or substances whatever, any annatto or compound of the same, or any other substance or substances, for the purpose or with the effect of imparting thereto a yellow color, or any shade of yellow, so that such substitute shall resemble yellow or any shade of genuine yellow butter, nor introduce any such coloring matter or such substance or substances into any of the articles of which the same is composed: provided, nothing in this act shall be construed to prohibit the use of salt and harmless coloring matter for coloring the substitutes for butter manufactured for export or sale outside the state. No person shall, by himself, his agents or employés, produce or manufacture any substance in imitation or semblance of natural butter, nor sell, nor keep for sale, nor offer for sale, any imitation butter made or manufactured, compounded or produced in violation of this section, whether such imitation butter shall be made or produced in this state or elsewhere. This section shall not be construed to prohibit the manufacture and sale, under the regulations hereinafter provided, of substances designed to be used as a substitute for butter, and not manufactured or colored as herein prohibited.

"Sec. 3. Every person who lawfully manufactures any substance designed to be used as a substitute for butter shall mark, by branding, stamping or stenciling upon the top and side of each tub, firkin, box or other package in which such article shall be kept, and in which it shall be removed from the place where it is produced, in a clean and durable manner, in the English language, the words, `Substitute for Butter,' in printed letters, in plain Roman type, each of which shall not be less than one inch in length and one-half inch in width.

"Sec. 4. No person, by himself or another, shall ship, consign or forward by any common carrier, whether public or private, any substance designed to be used as a substitute for butter, and no carrier shall knowingly receive the same for the purpose of forwarding or transporting, unless it shall be manufactured and marked as provided in the preceding section of this act, and unless it be consigned by the carrier and receipted for by its true name: provided, that this act shall not apply to any goods in transit between foreign states across the state of Missouri.

"Sec. 5. No person shall have in his possession or under his control, any substance designed to be used as a substitute for butter, unless the tub, firkin, box or other package containing the same be clearly and durably marked, as provided by section 4 of this act: provided, that this section shall not be deemed to apply to persons who have the same in their possession for the actual consumption of themselves and family. Every person having in possession or control of any substance designed to be used as a substitute for butter, which is not marked as required by the provisions of this act, shall be presumed to have known during the time of such possession or control, the true character and name, as fixed by this act, of such product.

"Sec. 6. No person, by himself or another, shall sell or offer for sale any substitute designed to be used for a substitute for butter under the name or under the pretense that the same is butter.

"Sec. 7. Whoever shall violate any of the provisions of sections 2, 3, 4, 5 or 6 of this act shall, for the first offense, be punished by a fine of not less than $50 nor more than $100, or by imprisonment not exceeding thirty days, and for each subsequent offense by a fine of not less than $250, nor more than $500, or by imprisonment in the county jail not less than thirty days nor more than six months, or by both such fine and imprisonment, in the discretion of the court.

"Sec. 8. Whoever shall have possession or control of any imitation butter, or any substance designed to be used as a substitute for butter, contrary to the provisions of this act, shall be construed to have possession of property with intent to use it as a means of committing a public offense: provided, that it shall be the duty of the officer who serves a search warrant issued for imitation butter, or any substance designed to be used as a substitute for butter, to deliver to the state board of agriculture, or to any person by said board authorized, in writing, to receive the same, a perfect sample of each article seized by virtue of such warrant, for the purpose of having the same analyzed, and forthwith to return to the person from whom it was taken the remainder of each article seized as aforesaid. If any sample be found to be imitation butter, or substitute designed to be used as a substitute for butter, it shall be retained by the state board of agriculture; but if any sample be found not to be imitation butter, or a substance designed to be used as a substitute for butter, it shall be returned forthwith to the...