State v. Maurer

• Citation: 255 Mo. 152,164 S.W. 551
• Parties: STATE v. MAURER et al.
• Decision Date: 06 January 1914
• Court: United States State Supreme Court of Missouri

164 S.W. 551

255 Mo. 152

STATE v. MAURER et al.

Supreme Court of Missouri, Division No. 2.

January 6, 1914.

Rehearing Denied February 17, 1914.

1. STATUTES (§ 211)—CODIFICATION—CHAPTER HEADINGS.

The headings of chapters, articles, and sections in the Revised Statutes are mere arbitrary designations, inserted for convenience of reference, and have no legislative authority to lessen or expand the letter or meaning of the law.

2. FOOD (§ 20)—WRONGFUL SALE—"IMITATION BUTTER"—INFORMATION.

Rev. St. 1909, § 650, defines imitation butter to consist of every article, substitute, or compound, other than that produced from pure milk or cream from the same, made in the semblance of butter, "and" designed to be used as a substitute for butter made from pure milk or cream from the same. Section 657 declares that no person by himself or another shall sell or offer for sale any substance designed to be used as a substitute for butter under the name of or under the pretense that the same is butter. Held, that the clause "made in the semblance of butter, and designed to be used as a substitute for butter," in section 650 should be construed as though "or" had been used instead of "and"; and hence it was not necessary that informations under section 657 should charge that the article sold was a substance or compound, other than that produced from pure milk or cream from the same, made in the semblance of butter, and designed to be used as a substitute therefor.

3. FOOD (§ 20)—IMITATION BUTTER—WRONGFUL SALE—INFORMATIONS—OLEOMARGARINE.

Informations charging the sale of imitation butter, in violation of Rev. St. 1909, § 657, alleging in the language of the section that defendants sold and offered for sale a substance designed to be used as a substitute for butter under the name of and under the pretense that the same was butter, to wit, "oleomargarine," sufficiently charged that the substance was, other than that produced from pure milk or cream made in the semblance of butter, and designed to be used as a substitute therefor.

4. FOOD (§ 20)—INFORMATION—OLEOMARGARINE—WRONGFUL SALE—NAME OF PURCHASER.

The name of a purchaser of oleomargarine sold for butter not being an essential ingredient of the offense created by Rev. St. 1909, § 657, providing that no person shall sell or offer for sale any substance designed to be used as a substitute for butter under the name of or under the pretense that the same is butter, an information charging that offense was not objectionable for failure to charge the name of the purchaser.

5. FOOD (§ 20)—WRONGFUL SALE—OLEOMARGARINE—FALSE PRETENSES.

An information for wrongful sale of oleomargarine under the name of and under the pretense that the same is butter, in violation of Rev. St. 1909, § 657, was not objectionable for failure to specify the pretense under which the sale was made.

6. FOOD (§ 14)—WRONGFUL SALE—IMITATION BUTTER.

Intent is not a necessary element of the offense of wrongfully selling oleomargarine under the name of and under the pretense that the same is butter, in violation of Rev. St. 1909, § 657.

7. CRIMINAL LAW (§ 1159)—APPEAL—EVIDENCE.

A conviction will not be reversed on appeal, unless there is an absence of substantial evidence to sustain the verdict.

8. FOOD (§ 21)—WRONGFUL SALE—SALE BY AGENT.

Under Rev. St. 1909, § 657, providing that no person, "by himself or another," shall sell any substance designed to be used as a substitute for butter under the name of or under the pretense that the same is butter, proof of sales by clerks in the ordinary course of business is sufficient to establish a prima facie case; the burden being on the principals to show that the sales were made contrary to express orders as matter of defense.

Appeal from St. Louis Court of Criminal Correction; Benj. J. Klene, Judge.

Jacob Maurer and others were convicted of violating the Pure Food Law, and they appealed to the Court of Appeals, where the judgments were reversed (156 S. W. 991), and the case transferred to the Supreme Court on division of the justices. Conviction affirmed.

Zachritz & Zachritz and Barclay, Fauntleroy & Cullen, all of St. Louis, for appellants. John T. Barker, Atty. Gen. (Paul P. Prosser, of La Plata, of counsel), for the State.

WALKER, J.

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, R. S. 1909 (originally enacted as section 6, Laws 1895, p. 26), 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 (156 S. W. 991) 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 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 $50, and the others $100 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 were reversed in an opinion by Allen, J., in which Nortoni, J., concurred, and Reynolds, J., dissented in a separate opinion, in which he held that the majority opinion was in conflict with a previous decision of the Supreme Court, whereupon the cases were again transferred to this court for final determination.

The facts and the assignments of error being practically the same in these cases, we will, for convenience, consider them together; where different we will review them separately.

Appellants contend that the informations charge no offense; that the testimony was insufficient to sustain the prosecutions; that the trial court erred in the exclusion of testimony; and that certain remarks of counsel for the state constituted reversible error.

I. Headings of Chapters, etc., No Part of Law.

The headings of chapters, articles, or sections are not to be considered in construing our statutes; these indicia are mere arbitrary designations inserted for convenience of reference by clerks or revisers, who have no legislative authority, and are therefore powerless to lessen or expand the letter or meaning of the law. Ferguson v. Gentry, 206 Mo. 189, 195, 104 S. W. 104; State v. Doerring, 194 Mo. 398, 414, 92 S. W. 489: Logan v. Fidelity Co., 146 Mo. 114, 122, 47 S W. 948; Huff v. Alsup, 64 Mo. 51. This observation is made preliminary to a review of the statutes upon which the informations are based, on account of references in the majority opinion of the Court of Appeals to these headings as aids to construction.

II. Sufficiency of Informations.

A review of sections 1 and 6 of the original act of 1895 (Laws 1895, p. 26), which have been carried forward in the same words in the revision of 1909, as sections 650 and 657, is necessary in determining the sufficiency of the informations in these cases.

These sections are as follows:

"Sec. 650. Imitation Butter Defined. For the purpose of sections 650 to 662 of this article, every article, substitute or compound, other than that produced from pure milk, or cream from the same, made in the semblance of butter and designed 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. 657. Offering Imitation Butter for Sale. 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."

The contention of the appellants is that the informations are invalid in failing to charge the offense in the language of section 650, in addition to that of section 657, upon which the informations are drawn. These sections are each complete in themselves, and, while the appellants do not so expressly state, the implication necessarily follows from their contention that section 650 is to be regarded as a definitive or an interpretation clause of section 657, and, if so, it is necessary in charging an offense under said section to employ, in addition to its own language, that of section 650, on the ground that the latter embraces a part of the constituent elements of the offense.

The rule is not questioned that an information or indictment based upon a statute defining an offense unknown to the common law is sufficient, if drawn in the express language of the statute, if it contains all the constituent elements of the offense; if not, these elements must be added. State v. Harroun, 199 Mo. 519, 98 S. W. 467. The reason for the charging of all the elements constituting an offense is, first, that the accused may be fully informed of the charge made against him, second, that the court may be enabled to determine whether the facts stated constitute an offense upon which a proper judgment may be rendered, and, third, that the judgment may be a bar to a future prosecution for the same offense. Arch. Cr. Pl. 42, 43; Com. v. Pray, 13 Pick. (Mass.) 359, 363; Clark's Cr. Pr. 150. No such difficulty can arise in the cases at bar; the informations charge the offense in the express language of the statute, which is clear and unequivocal, and add that the substance designed to be used as a substitute for...