State v. Burk

• Citation: 176 S.W. 487,188 Mo. App. 683
• Decision Date: 03 May 1915
• Docket Number: No. 11490.,11490.
• Parties: STATE v. BURK.
• Court: Court of Appeal of Missouri (US)

176 S.W. 487

188 Mo. App. 683

STATE v. BURK.

No. 11490.

Kansas City Court of Appeals, Missouri.

May 3, 1915.

Appeal from Circuit Court, Adair County; Charles D. Stewart, Judge.

Arthur Burk was convicted of an offense, and he appeals. Reversed and remanded.

A. Doneghy, of Kirksville, for appellant. Glenn C. Weatherby, of Kirksville, for the State.

TRIMBLE, J.

The appellant was convicted and fined $10 under the second count of an information charging him, as the proprietor of an establishment where food is stored, sold, and distributed to the public, with violating the provisions section 2 of the Missouri Pure Pood and Drug Act, approved March 30, 1911, and found in. Laws of Missouri 1911, at page 258. It was and is the contention of defendant that the statute created separate and distinct offenses, and that the second count of the information charged more than one offense. He therefore filed a motion to quash on this ground, which was overruled; and thereupon, at the beginning of the trial, he filed a motion to require the state to elect on which cause of action, stated in the second count, it would go to trial. This was also overruled, and the points were properly preserved for review. The state's position is that there is but one offense aimed at by the statute, and that is the keeping of an unclean, unhealthy, and unsanitary establishment or place where food is manufactured, packed, stored, sold, or distributed; and that, under the statute, such offense may be committed in one or more of several modes. If this be true, then the pleader may charge the offense and allege its commission by pleading in the same count one or more or all of the methods of its commission, joining them in the conjunctive.

It may be that one of the purposes of the statute is to prevent the keeping of unclean, unhealthy, unsanitary establishments for the manufacture, storage, sale, or distribution of food to the public, but certainly the statute is not so worded as to create but one offense. It reads as follows:

"The floors, sidewalks, ceilings, lockers, closets, furniture, receptacles, implements and machinery of every establishment or place where food is manufactured, packed, stored, sold or distributed and all cars, trucks and vehicles used in the transportation of food products, shall at no time be kept in an unclean, unhealthy or unsanitary condition, and for the purpose of this act, unclean, unhealthful and unsanitary conditions shall be deemed to exist if food in the process of manufacture, preparation, packing, storing, sale, distribution or transportation is not securely protected from flies, dust, dirt and, as far as may be necessary, by all reasonable means from all other foreign or injurious contamination; and if the refuse, dirt and waste products subject to decomposition and fermentation, incident to the manufacture, preparation, packing, storing, selling, distributing and transporting of food, are not removed daily; and if all trucks, trays, boxes, baskets, buckets and other receptacles, chutes, platforms, racks, tables, troughs, shelves and all knives, saws, cleavers and other utensils and machinery used in moving, handling, cutting, chopping, mixing, canning and all other processes are not thoroughly cleaned daily; and if the clothing of operatives, employés, clerks or other persons therein employed is unclean."

It will be noticed that it does not say that whoever shall permit such establishment or the food therein to become in an unclean, unhealthy, or unsanitary condition by allowing the floors, sidewalks, ceilings, etc., to become unclean, or by failing to securely protect the food from flies, dust, dirt, and all other foreign or injurious contamination as far as may be necessary...