State v. Bockstruck

• Decision Date: 15 December 1896
• Citation: 38 S.W. 317,136 Mo. 335
• Parties: The State v. Bockstruck, Appellant
• Court: Missouri Supreme Court

38 S.W. 317

136 Mo. 335

The State v. Bockstruck, Appellant

Supreme Court of Missouri, Second Division

December 15, 1896

[Copyrighted Material Omitted]

Appeal from St. Louis Court of Criminal Correction. Hon. David Murphy, Judge.

This prosecution is based on an act of the legislature approved April 22, 1895, and found in the laws of Missouri of that year, pages 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 thirty-first 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 * * * 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, 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 employes, 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 substance designed to be used for a substitute for butter under the name of 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 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 substance 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 person from whom it was taken.

"Sec. 9. No action can be maintained on account of any sale or other contract made in violation of or with intent to violate this act, by or through any person who was knowingly a party to such wrongful sale or other contract.

"Sec. 10. Whoever shall efface, erase, cancel or remove any mark provided for by this act, with intent to mislead, deceive, or to violate any of the provisions of this act, shall be deemed guilty of a misdemeanor.

"Sec. 11. The state board of agriculture shall be and is hereby charged with the enforcement of the act. There is hereby appropriated to the state board of agriculture, out of any money not otherwise appropriated, the sum of five thousand dollars ($ 5,000) for the next biennial period, or so much thereof as may be necessary for the enforcement of this act: Provided, that all fines collected under the provisions of this act shall be covered into the state treasury. Actions under this act shall be brought in any court of competent jurisdiction.

"Sec. 12. All acts and parts of acts inconsistent with this act are hereby repealed."

Defendant unsuccessfully moved to quash the information, which motion being denied, he pleaded not guilty to the charge and waived a jury, whereupon the cause was tried by the court upon the following testimony:

"Q. What is your full name? A. David May.

"Q. What official position do you hold, Mr. May? A. I am agent for the state enforcement of this oleomargarine law, in regard to the manufacture and sale of oleomargarine.

"Q. Connected with the agricultural department of the state? A. I am acting through the state board of agriculture.

"Q. On the thirty-first day of July were you at Mr. Henry Bockstruck's place of business? A. Yes, sir.

"Q. Did you have any business transactions there? A. I purchased a pound of oleomargarine from his place.

"Q. From whom did you purchase it? A. I purchased it from a young man about sixteen years of age.

"Q. A clerk in the store? A. Yes, sir.

"Q. Well, what do you mean by oleomargarine, of what is it composed? A. It is composed of certain fats and vegetable oils, and usually some coloring matter that gives it an imitation of butter, the same shade as yellow butter.

"Q. Well, with reference to this pound that you purchased there, what was the color of it? A. It was colored to imitate yellow butter.

"Q. It was colored to imitate yellow butter? A. Yes, sir.

"Q. Can you state the substance with which it was colored? A. It is my belief that it was annatto. I can not swear to it."

"Counsel for defendant: Wait a minute. I want to save the point that the information does not charge that it was annatto. (Addressing witness): You say you don't know whether it was annatto or not? A. I know that it was colored, but I don't know that it was annatto.

"Q. It was...