State v. Miller

• Decision Date: 08 January 1924
• Docket Number: No. 18262.,18262.
• Citation: 258 S.W. 34
• Parties: STATE v. MILLER
• Court: Missouri Court of Appeals

258 S.W. 34

STATE v. MILLER

No. 18262.

St. Louis Court of Appeals. Missouri.

January 8, 1924.

Rehearing Denied January 26, 1924.

Appeal from Circuit Court, Audrain. County; Ernest S. Gantt, Judge.

"Not to be officially published."

Robert Miler was convicted of selling hogs infected with cholera, and appeals. Affirmed.

S. D. Stocks and Harry G. Stocks, both Mexico, Mo., for appellant.

Frank Hollingsworth, Pros. Atty., of Mexico, Mo., for the State.

SUTTON, C.

This is a prosecution under an indictment, based upon section 4264 of the Revised Statutes of 1919, for selling and hauling in a wagon along and across a public highway 20 hogs charged to have been infected with cholera. The defendant, a farmer living north of Mexico, in Audrain county, met, at Mexico, on December 6, 1921, Charles T. Powell, a local buyer and shipper of live stock, and agreed with him for the sate of 20 hogs located on defendant's farm. Two days afterwards, pursuant to the agreement. defendant delivered the hogs to Powell at Mexico, hauling them to Mexico in a wagon, along the public highway. The evidence showed that the hogs were infected with cholera at the time they were sold. The crucial issue at the trial was whether or not the defendant had knowledge of the infested condition of the hogs at the time he sold them. The cause was tried to a jury. Though proof was made of both the offending acts charged in the indictment, to wit, (1) the selling of the hogs and (2) the hauling of the hogs across and along the public highway, only one of the offending acts, to wit, the selling of the hogs, was submitted to the jury by the instructions. The jury found the defendant guilty, and assessed his punishment at a fine of $10. The defendant appeals.

In the trial court the defendant moved to quash the indictment for duplicity. The court overruled the motion to quash. Thereupon defendant moved the court to require the state to elect upon which of the offenses charged in the indictment it would proceed to trial. The court likewise overruled this motion. Defendant assigns these adverse rulings as errors for which he insists the judgment of the trial court should be reversed. The indictment is founded upon section 4264, Revised Statutes 1919, which is as follows:

"That it shall be unlawful for any person to sell or offer for sale any swine in this state which is infected with hog cholera, or any other disease; or to drive on foot, or haul in any wagon or other conveyance, any such infected swine along, or across, any public highway; or across, or over, any unfenced land in this state; or to suffer any such infected swine to run at large on any common or unfenced lands in this state."

The indictment charges that the defendant, on or about the 8th day of December, 1921, at the county of Audrain and state of Missouri "did then and there willfully and unlawfully sell and haul in a wagon along and across a public highway and deliver to one Charles T. Powell certain swine then and there infected with hog cholera." Defendant contends that the indictment charges the commission of two separate and distinct offenses to wit: (1) That defendant did willfully and unlawfully sell certain swine infected with cholera and (2) that defendant did willfully and unlawfully haul in a wagon such infected swine along and across a public highway. Anent the question thus raised, Bishop, in his new Criminal Procedure (2d Ed.) vol. 1, § 436, states the general rule as follows:

"A statute often makes punishable the doing of one thing or another, or another, sometimes thus specifying a considerable number of things. Then, by proper and ordinary construction, a parson who in one transaction does all, violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore the indictment on such a statute may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction and where the statute has `or' and it will not be double, and it will be established at the trial by proof of any one of them." (We have italicized the words "in one transaction.")

In State v. Flynn, 258 Mo. 211, loc. cit. 223, 167 S. W. 516, 519, Faris, J., having under review an information attacked as duplicitous for charging in one count several acts forbidden in the alternative by the statute, quotes approvingly the same author, as follows:

"To repeat what was explained in another connection, if a statute makes criminal the doing of this, or that, mentioning several things disjunctively, there is but one offense, which may be committed in different ways; and in most instances all may be charged in a single count. But the conjunctive `and' must ordinarily in the indictment take the place of `or' in the statute, else it will be ill as being uncertain. And proof of the offense in any one of the ways will sustain the allegation. On the other hand, the indictment may equally well charge what comes within a single one or more classes, less than all, of the statute, and still it embraces the complete proportions of the forbidden wrong."

Whereupon the learned justice very fittingly remarked:

"It is apparent that both the statute and the adjudicated cases contemplate in a proper case the identical pleading found in the information here criticized, and, so far from an information so couched being in violation of the constitutional provision that a defendant shall be informed of the charge against him, it may well be said that in a proper case such an information as the one at bar does with certainty and in detail exactly inform the defendant of the precise charge he is called upon to meet, and at the same time does not require him to meet but one single charge,"

In State v. Thomas, 210 Mo. App. 493, 496, 240 S. W. 857, loc. cit. 858, the rule was stated thus:

"Criminal statutes are to be strictly construed in favor of the accused, and where different acts are prohibited by the same section of the statute and but one punishment provided, it is usually, if not universally, held that but one offense is defined, and while a party may be convicted on proof of the commission of one of the forbidden acts only, yet if he be proven to have committed all of them, he is still guilty of but one offense, and cannot have more than one penalty assessed against him."

In State v. Miller, 188 Mo. 370, loc. cit. 377, 87 S. W. 484, 486, the rule was stated as follows:

"In recognition of this principle we have numerous statutes which forbid the doing of certain acts embraced in the same section, which in fact create several offenses in the alternative, and it has been uniformly ruled by this court that, where such acts are not repugnant to each other or inconsistent, all of them may be charged conjunctively in the indictment or information charging the offense created by the section."

Under the decisions in this state there can be no question that, where a statute forbids the commission of several acts, disjunctively specified, for which but one punishment is provided, and such acts are not repugnant or inconsistent, or separate and distinct in their nature, two or more, or all of such forbidden acts, if committed in one transaction, may be charged conjunctively in one count of the indictment, and it will not be bad for duplicity. In such case the statute is regarded as defining but one offense. State v. Flynn, 258 Mo. 211, loc. cit. 223, 167 S. W. 516; State v. Schleuter, 110 Mo. App. 7, loc. et. 10, 83 S. W. 1012; State v. Fancher, 71 Mo. 460, loc. cit. 462; State v. Cameron, 117 Mo. 371, loc. cit. 374, 22 S. W. 1024; St. Louis v. St. Louis Theatre Co., 202 Mo. 690, loc. cit. 698, 100 S. W. 627; State v. Thomas, 210 Mo. App. 493, 240 S. W. 857, loc. cit. 858; State v. Young, 163 Mo. App. 88, loc. cit. 98, 146 S. W. 70; State v. Miller, 188 Mo. 370, loc. cit. 377, 87 S. W. 484; State v. Grossman, 214 Mo. 233, loc. cit. 242, 113 S. W. 104; State v. McWilliams, 7 Mo. App. 99, loc. cit. 101; State v. Currier, 225 Mo. 642, loc. cit. 649, 125 S. W. 461.

The indictment under review in this case charges in one count two of the offending acts forbidden by the statute. The proof shows that defendant, having entered into an agreement to sell his hogs, afterwards, pursuant to the agreement, delivered the hogs to the purchaser, and in so doing hauled the hogs in a wagon along the public highway. The agreement to sell and the delivery of the hogs to the purchaser were constituent elements of the sale, and the act of hauling the hogs along the public highway was done in making delivery of the hogs in consummation of the sale. So that the act of selling the hogs and the act of hauling them along the highway were acts comprehended within one transaction. There was no repugnance, inconsistency, or incongruity in the several acts. The act of selling the hogs and the act of hauling them along the highway constituted but one offense, for which but one punishment could be inflicted. The indictment therefore is not duplicitous.

The defendant complains of the following instruction given for the state:

"In determining whether the defendant knew at the time of the sale of the hogs to Powell that they were infected with hog cholera, if you find they were so infected, you are instructed that his knowledge, if any, thereof need not be proven by direct and positive evidence, but it may be lawfully and properly inferred by you from all the facts and circumstances in evidence...