State v. Martin

• Decision Date: 31 May 1838
• Citation: 5 Mo. 361
• Parties: STATE v. MARTIN.
• Court: Missouri Supreme Court

5 Mo. 361

STATE

v.MARTIN.

Supreme Court of Missouri.

May Term, 1838.

COOK, for Defendant. The defendant contends that the indictment is defective in this, that: 1. It does not allege that defendant did deal in the selling of goods, wares or merchandise. 2. The indictment does not charge the sale to have been made at any store, stand, or place occupied for that purpose. Each of these circumstances constitute part of the statutory definition, and both are necessary. In order to constitute a person, under this statute, a merchant, he must not only sell goods, wares or merchandise, but he must follow it as a business, which, I understand to be the sense in which the Legislature used the terms “shall deal in the selling of goods, wares or merchandise.” I do not understand that a single isolated sale of goods will constitute a person a merchant, and therefore, the terms are not of the same import as those charged in the indictment. And certainly, in order to charge him as a merchant, it is necessary to allege that the sale was made at a store, stand, or place occupied for that purpose, of dealing in the selling of goods. For anything that appears in the indictment, he might or might not have sold the goods at a store, stand, or place occupied by the person for that purpose. He may have been a peddler or auctioneer, and there is nothing in the indictment to negative the idea. The indictment should have alleged all the circumstances that make up the statutable definition of the offense. 1 Chit. Crim. Law, p. 281-2; and not having done so, and it being uncertain from the indictment, if the defendant has been guilty of any offense, what it is, the indictment was properly quashed.

EDWARDS, J.

This was an indictment against Martin in the Circuit Court of New Madrid county. On motion of the defendant, the indictment was quashed, and the State appealed. The indictment charges, that on the day and year, and at the place therein mentioned, “with force and arms, at the county of New Madrid, aforesaid, in the State of Missouri, aforesaid, unlawfully, for and in consideration of the sum (to-wit:) of one dollar, then and there had and received of one Ebenezer Oldham, he, the said Enoch Martin, then and there did sell, retail and deliver unto the said Ebenezer Oldham, six yards of cloth, commonly called Kentucky cotton linen, without first obtaining a merchant's license, him, the said Enoch Martin, to authorize to deal as a merchant. The defendant contends that this indictment is defective: 1. In not alleging that the defendant did deal in the selling of goods, wares and merchandise. 2. In not alleging the sale to have been made at any store, stand, or place occupied for that purpose.

The first section of the act to license and tax merchants (Rev. Code of 1835, p. 403) provides that “every person, or co-partnership of persons, who shall deal in the selling of goods, wares or merchandise, at any store, stand, or place occupied for that purpose, is declared to be a...