State v. Richeson
| Decision Date | 31 March 1870 |
| Citation | 45 Mo. 575 |
| Parties | THE STATE OF MISSOURI, Respondent, v. THOMAS RICHESON and CHARLES K. VICKERS, Appellants. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Criminal Correction.
Cline, Jamison & Day, for appellants.
I. “To be a merchant, in the sense of the law, the dealer must have on hand goods, wares, and merchandise ready for sale and present delivery, and must also actually deal in the selling of the same.” (The State v. Whittaker, 33 Mo. 457; The State v. West, 34 Mo. 424; R. C. 1855, p. 409, §§ 1, 2.)
II. The presumption of innocence runs in favor of the accused, and remains until overcome by competent proof; and there is no evidence in this case that the Collier White Lead Company ever delivered any white lead on an order that could not be manufactured for the customer after the order had been given, and before the lead was delivered.
H. B. Johnson, Attorney-General, with Colcord & Farney, for respondent, cited R. C. 1865, ch. 93, § 1; State v. Whittaker, 33 Mo. 457; State v. West, 34 Mo. 427; 37 Mo. 192; State v. Jacobs, 38 Mo. 379; State v. Cox, 32 Mo. 566; 27 Mo. 344, 464; 26 Mo. 171; State v. Brown et al., 8 Mo. 210; State v. Hunter, 5 Mo. 360; State v. Martin, id. 361; Tracy et al. v. State, 3 Mo. 3; 43 Mo. 179; 2 Bouv. Law Dic.; Gen. Stat. 1865, p. 409, § 3.
Defendants were prosecuted by information for exercising the trade and business of merchants without license; and it was shown that they were officers and agents of the Collier White Lead and Oil Company, a St. Louis corporation engaged in the manufacture of white lead. The evidence failed to show that the manufactured article was kept on hand and exposed for sale by the company, but it did show that its agents were in the habit of receiving orders at the manufactory from wholesale dealers, entering them upon the order-book, and subsequently delivering the lead. The witnesses gave different periods of time between the orders and the delivery; but one testified that he was in the habit of giving his orders in the morning, and received the lead the same or the next day. To rebut this testimony, the defendants showed that it took some ninety days to carbonize the virgin pig-lead, and some twenty-four hours to dry and pulverize it; that the factory kept on hand, at all times, a million pounds of carbonized lead, and the necessary cooperage; and that an order for a ton of white lead could be filled in two hours, as it was made by grinding the carbonized lead with tiff and oil.
The court, at the instance of the defendants, held as declarations of law that if the company for whom they acted, or if the defendants themselves, were engaged in manufacturing white lead upon written or verbal orders, and “did not at any time keep on hand for sale, or offer or expose for sale, or sell, any white lead that was manufactured and complete or ready for delivery at the time the same was ordered,” then defendants were not merchants, and it did not matter if the company had on hand large amounts of carbonized lead, tiff, and oil, out of which to manufacture the white lead to fill the orders. The substance of this position was held by the court in three declarations of law, but the court refused to make the following: “Before the State can convict in this case, it must establish beyond a reasonable doubt that the defendants exercised the business of merchants in the city and county of St. Louis; that is to say, they must be shown to have kept on hand ready-manufactured white lead for sale, or to have sold the same, ready-made, at their factory or place of business; and that the burden of establishing these facts is upon the State; and they can not be inferred from the mere fact that orders were left at the factory for white lead, which were subsequently filled.” To this refusal the defendants excepted, and the court finding them guilty, they appeal.
The statute (Wagn. Stat. 937, § 1) defines a merchant as follows: “Every person, or co-partnership of persons, who shall deal in the selling of goods, wares, or merchandise, including clocks, at any store, stand, or place occupied for that purpose, is declared to be a merchant.” So that it does not matter whether a person buys and sells, as merchants ordinarily do, or manufactures and sells; if he “shall deal in the selling” at any particular place, he is a merchant. (See State v. Whittaker, 33 Mo. 457.) But this court decided in State v. West, 34 Mo. 424, that a tailor who kept cloth on hand from which to make clothing, and only made it up for the personal use of his customers, and not for sale,...
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