State v. Viviano

• Decision Date: 06 November 1918
• Docket Number: No. 15063.,15063.
• Citation: 206 S.W. 235
• Parties: STATE v. VIVIANO.
• Court: Missouri Court of Appeals

206 S.W. 235

STATE v. VIVIANO.

No. 15063.

St. Louis Court of Appeals. Missouri.

November 6, 1918.

Appeal from St. Louis Court of Criminal Correction; Calvin N. Miller, Judge.

"Not to be officially published."

Vito Viviano was convicted of employing a 14 year old boy without having employment certificate issued by superintendent of instruction of board of education placed on file, and he appeals. Reversed, and defendant discharged.

Geo. W. Lubke and Geo. W. Lubke, Jr., both of St. Louis, for appellant. Howard Sidener, of St. Louis, for the State.

BECKER, J.

This is an information in the St. Louis court of criminal correction against Vito Viviano. The information is founded on Laws of Missouri 1911, pages 132, 133, §§ 1715, 1717, and 1719, and reads as follows:

"That Vito Viviano, in the city of St. Louis, on the 26th day of May, 1014, did unlawfully employ, permit, and suffer to work one Peter Licavoli, a child under the age of 16 years, and over the age of 14 years, to wit, of the age of 14 years 5 months, at a gainful occupation, other than agricultural pursuits or domestic service, to wit, by handling spaghetti in a factory owned, operated, and controlled by V. Viviano & Bro., without first having placed on file it said factory, at the time of employment and accessible to any factory inspector, to any school attendance officer, and to any other authorized officer, an employment certificate duly issue by the attendance officer of the hoard of education of this state for the 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."

At the conclusion of the evidence offered by the state the information was amended, over the objections of the defendant, by inserting the words "Macaroni Manufacturing Company, a corporation," after the words "V. Viviano & Bro."

Upon a trial the defendant was found guilty as charged in the information and his punishment assessed at a fine of $100. After unsuccessful motions for a new trial and in arrest of judgment, the defendant appeals.

The sufficiency of the information was questioned, both by motion to guash and in arrest. Examining the information as it stood before being amended, it is clear that it was intended to charge the defendant, Vito Viviano, as connected in some way, probably as a partner, with the firm of V. Viviano & Bro., with an alleged violation of Laws of Missouri 1911, pp. 132, 133, §§ 1715, 1717, and 1719. We hold, however, that the information charges no offense under the statute when it alleges the employment of a minor under the age of 16 years and over the age of 14 years, without first having placed on file an employment certificate duly issued by the "attendance officer of the board of education of this state for the city of St. Louis," as the statute specifically provides that the certificate required to be filed is one issued "only by the superintendent of instruction of any board of education in this state, or by a person authorized by him in writing, or, where there is no superintendent of instruction, by a person authorized by the board of directors of any school district in...