State v. Thierauf
| Citation | 67 S.W. 292,167 Mo. 429 |
| Court | United States State Supreme Court of Missouri |
| Decision Date | 04 February 1902 |
| Parties | STATE v. THIERAUF.<SMALL><SUP>†</SUP></SMALL> |
Appeal from St. Louis criminal court; Willis H. Clark, Judge.
John B. Thierauf was convicted of selling a medical preparation with a label imitating in part a label previously in use by another, and appeals. Reversed.
The second count of the information upon which alone the defendant was tried and convicted was as follows:
CASTORIA
A vegetable preparation for assimilating
the food and regulating the stomach
and bowels of
INFANTS and CHILDREN
Promotes Digestion, Cheerfulness and
Rest. Contains neither Opium, Morphine
nor Mineral. NOT NARCOTIC
-------------....-----------
Receipe of old Dr. SAMUEL PITCHER
Pumpkin Seed, |
Alx Senna |
Rochelle Salts |
Anise Seed |
Peppermint >
Bt Carbonate Soda |
Worm Seed |
Clarified Sugar |
Wintergreen Flavor. |
-------------....-----------
A Perfect remedy for Constipation, Sour
Stomach, Diarrhoea, Worms, Convulsions,
Feverishness and LOSS OF SLEEP.
-------------....-----------
Fac Simile Signature of
ALPH. ARTHUR
NEW YORK.
SEE DIRECTIONS
ON LABEL.
Price, 35 Cents.
FOR INFANTS AND CHILDREN
Prepared in strict accordance with ACCEPT NONE - - -
the original formula by Without the official
ARTHUR CHEMICAL CO. Signature,
Pharmaceutical Department. ALPH. ARTHUR,
NEW YORK On Every Bottle.
—And which said label, brand, wrapper, and imprint was, as he, the said Chieraun, then and there well knew, in part the same to the eye as the words and general design then used, and for a long time prior thereto used, by a body corporate, to wit, the Centaur Company, a corporation under and by virtue of the laws of the state of New York, for designating the compound and preparation known as and called `Castoria,' and manufactured and prepared by said Centaur Company, a corporation as aforesaid, and which said label, brand, and wrapper and imprint so used as aforesaid by the Centaur Company, a corporation as aforesaid, was in words and figures as follows, to wit:
THE is
fac-simile on every
signature CHAS. H. FLETCHER, wrapper.
of
CASTORIA, huma preparacao Vegetal para a assimilacao da Comida, e para regular o Estomago, e as Entranhas das CRIANCAS e MENINOS. Promove a Di gestas, o Bom Humor, e o Socego, Nao Contern Opio, Nem Morphina. Recipe do Velho Dr. Samuel Pitcher, Hum Remedio Perfeito para Constipacao, Estomago Acido, Diarrhea, Lombrigas, Convulsoes, Indisposicao, Febricitante e PERCA DO SONO.
CASTORIA
CASTORIA. Ein vegetabilisches Praparat zur Verbindung der Nahrung und Reguhrung des Magens und der Gadarme von Sanglingen und Kindern; es befordert Verdauung, Munterfeit und Ruhe; es enthalt weder Opium noch Morphium. Recept des alten Doctors Samuel Pitcher. Ein vollfommenes Heilmittel fur Verstopsung, Sauern Magen, Durchfall, Wurmer, Krampfe, Feiberhastigfeit und Schlasosigfeit.
Chas. H. Fletcher, NEW YORK.
—He, the said Benjamin Chieraun, as he well knew, then and there not having been the first to employ and use the aforesaid words or general design to designate, wholly or in part, the aforesaid or any other compound, preparation, goods, wares, or merchandise, and as he, the said Benjamin Chieraun, then and there well knew that said words, wholly or in part, and the said design as aforesaid, were then and there used by the said Centaur Company, a corporation as aforesaid, for designating its compound and preparation as aforesaid, and for a long time prior thereto had been so used by it, and for a long time before said words or words or general design as aforesaid were used by the said Benjamin Chieraun for any compound or preparation as aforesaid, and that a large lot and quantity of the aforesaid spurious compound and preparation called `Castoria,' in bottles with the aforesaid counterfeiting labels and wrappers thereon, and a large lot of said imitation labels and wrappers, and plates and dies for making the same, are now in possession of the said Chieraun, on premises No. 109 South Second street, in said city of St. Louis,—contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state. Rich M. Johnson, Ass. Pros. Attorney St. Louis Court of Criminal Correction.
Defendant suggested his true name, and moved to quash for the following reasons: "Comes now the said defendant, John B. Thierauf, who is prosecuted herein under the name of Benjamin Chieraun, and here now in open court, on this, the 12th day of March, 1901, by his attorney, moves the court to quash the information against him in this cause on the ground that said information is insufficient in law, in that it does not charge the defendant with a violation of any law of the state; and in that it is not charged in said information that the label which defendant is charged to have imitated has ever been filed in the office of the secretary of state; and in that it is not alleged that said secretary of state has issued his certificate showing such filing and recording; and in that the act of the general assembly of this state under which said information is drawn, to wit, the act approved March 20, 1893, entitled `Trade-Marks,' is repugnant and contrary to the provisions of the constitution of this state relating to searches and search warrants, and undertakes to repeal all the laws of this state enacted in accordance with the requirements of said section of the constitution; and in that said act is contrary to the provisions of section 23 of article 2 of the constitution of this state, relating to testimony on civil and criminal cases; and in that this court hath not jurisdiction to hear and determine this cause,"—which motion was overruled, and exceptions saved.
A jury was waived, and...
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State v. Settle
...then it is the constitutional right of the defendant "to demand the nature and the cause of the accusation against him." [State v. Thierauf, 167 Mo. 429, 67 S.W. 292.] The law this case is to be found in one section of the statutes and in part of another. Both are crudely drawn. They denoun......
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State v. Settle
...then it is the constitutional right of the defendant "to demand the nature and the cause of the accusation against him." [State v. Thierauf, 167 Mo. 429, 67 S.W. 292.] The law of this case is to be found in one section of the statutes and in part of another. Both are crudely drawn. They den......
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State v. Wolfner
... ... permit was one in the opinion of the Finance Commissioner not ... dealing in high-grade bonds and stocks, and absent this ... negative averment, the information is fatally defective ... State v. Timeus, 232 Mo. 177; State v ... Hayward, 83 Mo. 299; State v. Thierauf, 167 Mo ... 429; State v. Hesseltine, 130 Mo. 474; State v ... Meek, 71 Mo. 357; State v. De Groat, 168 S.W ... 705; State v. Gabriel, 88 Mo. 642 ... North ... T. Gentry, Attorney-General, and George W ... Crowder, Assistant Attorney-General, for respondent; ... Paul ... ...
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State v. Wolfner
...absent this negative averment, the information is fatally defective. State v. Timeus, 232 Mo. 177; State v. Hayward, 83 Mo. 299; State v. Thierauf, 167 Mo. 429; State v. Hesseltine, 130 Mo. 474; State v. Meek, 71 Mo. 357; State v. De Groat, 168 S.W. 705; State v. Gabriel, 88 Mo. North T. Ge......