State v. Murphy

• Citation: 147 S.W. 520,164 Mo.App. 204
• Parties: STATE OF MISSOURI, Respondent, v. R. E. MURPHY, Appellant
• Decision Date: 06 May 1912
• Court: Court of Appeal of Missouri (US)

147 S.W. 520

164 Mo.App. 204

STATE OF MISSOURI, Respondent, v. R. E. MURPHY, Appellant

Court of Appeals of Missouri, Springfield

May 6, 1912

Motion for Rehearing Denied, June 3, 1912.

Appeal from Greene Criminal Court.--Hon. Alfred Page, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

J. J Gideon and J. C. West for appellant.

(1) The information fails to charge that the bottles used by the defendant were bearing the name of some person or corporation, who were then and there manufacturers of the described drinks. Nor does the information charge that the Queen City Broom & Bottling Company or the Scholten Bottling Company, or either of said companies, then and there existed in Springfield, Missouri, or any other place; nor whether either or both are manufacturers; nor whether either are persons, firms or corporations having an existence. State v. Patterson, 159 Mo. 102; State v. Jones, 168 Mo. 402; State v. Horned, 178 Mo. 62; State v Kelley, 206 Mo. 693; State v. Clark, 223 Mo 51. (2) The information must bring the defendant strictly and certainly within the terms of the offense described by statute and leave nothing to conjecture or inference and nothing is taken by intendment. State v. Latshaw, 63 Mo.App. 500; State v. Morrison, 64 Mo.App. 508; State v. Broeder, 90 Mo.App. 165; State v. Gassard, 103 Mo.App. 145; State v. Runzi, 105 Mo.App. 330; State v. Renkard, 150 Mo.App. 573. (3) The word "manufactures" as used in the information is not a misspelled word and while the scrivener may have intended to use the word "manufacturers" and follow the word of the statute, he did not; and the rule of idem sonans does not apply. State v. Clinkenbeard, 135 Mo.App. 191; State v. Fairlamb, 121 Mo. 153.

J. H. Mason, prosecuting attorney, for respondent.

(1) It is obvious that the first point relied upon by appellant for a reversal of the judgment of the trial court is untenable, all authorities cited in support of respondent's failure to allege in the information that the Queen City Broom & Bottling Company and the Scholten Bottling Company were copartnerships or corporations, has no application to the case at bar. Such a requirement only applies in cases involving buildings burglarized and property stolen, or converted, or wherein property rights are affected and is one of the essentials of the offense charged. State v. Clarke, 223 Mo. 51; State v. Kelley, 206 Mo. 693; State v. Horned, 178 Mo. 62; State v. Pollock, 105 Mo. 278. (2) True it is that the word manufacturers is not spelled in the information as the same appears in this enactment of the Legislature, still this cannot work harmful error to defendant as the rule of idem sonans obviously applies in this case, as well as section 5115, Revised Statutes 1909, known as the Statute of Jeofails. State v. Lucase, 147 Mo. 70; State v. Miller, 156 Mo. 76; State v. Vaughn, 141 Mo. 514.

OPINION

COX, J.

From a conviction upon a charge of having in his possession with intent to sell certain non-alcoholic drinks which were misbranded defendant has appealed.

The only question raised in this court goes to the sufficiency of the information which is as follows:

"J. H. Mason, prosecuting attorney within and for the county of Greene, in the State of Missouri, under his oath of office informs the court that R. E. Murphy, late of the county and state aforesaid, on the 26th day of July, A. D. 1911, at the county of Greene and state of Missouri, did then and there willfully and unlawfully have in his possession with intent to sell the same, certain non-alcoholic drinks, which non-alcoholic drinks were manufactured and produced by the said R. E. Murphy, to-wit: One bottle of Colo Coke, two bottles of Chocolate Soda, and one bottle of Strawberry Soda, which were then and there misbranded in this, that is to say, two of said bottles as aforesaid, were then and there branded Queen City Broom and Bottling Company, Springfield, Missouri, and two of said bottles were branded Scholten Bottling Company, Springfield, Missouri, and all were marked registered, said bottles then and there bearing the name of manufactures other than the said R. E. Murphy, who was then and there using the same, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state."

There are two objections to this information. First: Does not allege that "Queen City Broom and Bottling Company," and "Scholten Bottling Company," are corporations or partnerships or a trade name assumed by an individual.

Second: That it does not charge defendant with using the name of manufacturers other than himself.

This information is drawn under Session Acts 1911, pages 261 and 262, which is directed against the adulteration or misbranding of non-alcoholic drinks. The provisions of this act as far as applicable to this case are as follows:

"Section 1. Non-Alcoholic Drinks Not to be Adulterated or Misbranded--That it shall be unlawful for any person, firm or corporate body, by himself, itself or themselves, or...