The State v. Gregory
| Decision Date | 16 December 1902 |
| Citation | 71 S.W. 170,170 Mo. 598 |
| Parties | THE STATE v. P. G. GREGORY, Appellant |
| Court | Missouri Supreme Court |
Transferred from Kansas City Court of Appeals.
Affirmed.
J. H McVay for appellant.
(1) The court should have sustained the motion to quash the indictment for the reason that the section of the statute under which it is drawn is unconstitutional and void: (a) It is class legislation. (b) It deprives the contractor of the equal protection of the law. (c) It deprives the contractor of the free use of his property. (d) It imposes a penalty upon a contractor that it does not impose upon any other person, and is therefore void. Mo. Constitution, art. 11 sec. 30; U. S. Constitution, sec. 1, art. 14; State v. Julow, 129 Mo. 163; State v. Loomis, 115 Mo. 307. (e) This section of the statute deprives the citizen of his right to make a contract of purchase of property and do as he pleases therewith; the Legislature has no power to abridge the rights of the citizen in this particular if the subject-matter of the contract is lawful and the contract made in a lawful manner. (2) The court should have allowed the defendant to state the intent with which he moved the remnant of material from the designated place, whether for the purpose of defrauding the materialman or for the reason that it was and had been the custom for years for contractors to do so for the reason that if left at the place the property would be destroyed or stolen, and thus would be a total loss to all interested parties, and to state what the custom of contractors was. The intent was the gist of the criminal charge. State v. Banks, 73 Mo. 596; State v. Williams, 95 Mo. 249; State v. Palmer, 88 Mo. 573; State v. Partlow, 90 Mo. 626; Vansickle v. Brown, 68 Mo. 627. (3) The court should have instructed the jury on the presumption of innocence, which it failed to do. Bishop's New Cr. Procedure, secs. 1103-4; State v. Kelly, 73 Mo. 608; State v. Patrick, 107 Mo. 172. (4) The court should not have given an instruction purporting to cover the entire case, which instruction 1 did, which instruction totally ignored the defendant's defense as presented by the evidence. State v. Patrick, supra; Carder v. Primm, 60 Mo.App. 423; Schroeder v. Michaels, 98 Mo. 43; Fitzgerald v. Hayward, 50 Mo. 516; Mansur v. Botts, 80 Mo. 651; Sheedy v. Streeter, 70 Mo. 679; Carroll v. Railroad, 60 Mo.App. 465; State v. McKenzie, 102 Mo. 620.
Herbert S. Hadley, C. E. Burnham and Frank G. Johnson for the State.
(1) The section is constitutional. It is not class legislation. It applies to all contractors alike. (2) This statute is not made for the protection of the contractor, but the protection of the lumber dealer, hence, it does not deprive the contractor of the equal protection of the law. (3) It is not the contractor's property. He has only a special property in the material where it is purchased, as this was, for use in a particular building and on credit of the building. His right is to use it in that building only. The law enters into the contract. Cahil Collins & Co. v. Elliott, 54 Mo.App. 390; Lumber Co. v. Hoos, 67 Mo.App. 274; Ridge v. Mercantile Co., 56 Mo.App. 158. In such cases the intent to waive the lien must clearly appear. Lumber Co. v. Hoos, supra. (4) The penalty is common to all of his class and applies to every person who may engage in the business of contracting and building. To make contractors a class of buyers is permissible and not an arbitrary classification. State v. Whitaker, 160 Mo. 59; St. Louis v. Bower, 94 Mo. 634; Kansas City v. McDonald, 80 Mo.App. 448. (5) Upon principle and authority the rule is settled that acts of the Legislature are to be presumed constitutional until the contrary is clearly shown; and it is only when they manifestly infringe on some provision of the Constitution that they can be declared void. St. Louis Co. Ct. v. Griswold, 58 Mo. 192; Ewing v. Hoblitzelle, 85 Mo. 64; Phillips v. Railroad, 86 Mo. 540. (6) It is not error not to instruct on presumption of innocence in misdemeanor cases. Neither of the cases cited by appellant announce any such rule as claimed by him. Nor does the statute, section 2627, so require, but by implication it negatives the necessity except in felony cases. Besides, it is expressly ruled that it is not necessary to give a formal instruction on the presumption of innocence. State v. Heinze, 66 Mo.App. 136; State v. Matthis, 49 Mo.App. 238; State v. Baldwin, 56 Mo.App. 427. To avail defendant anything by reason of this omission he must have excepted to the failure at the time and assigned it as error in his motion for new trial. This he did not do. State v. David, 159 Mo. 531; State v. Westlake, 159 Mo. 679; State v. Cantlin, 118 Mo. 111.
This is a prosecution under section 4226, Revised Statutes 1899, which is in these words:
Although the offense is made a misdemeanor only, jurisdiction of this appeal is conferred on this court because the constitutionality of said section was duly challenged by the motion to quash the indictment, and the criminal court having overruled the same, an exception was duly saved and the motion and exception incorporated in the bill of exceptions.
The indictment was returned at the January term, 1900, and the defendant was tried and convicted on the 18th of February, 1901. The record was filed in the Kansas City Court of Appeals, September 14, 1901, and by that court transferred to this court and lodged in the clerk's office too late to be heard at the April term of this year.
The indictment in substance charges that defendant Gregory on the 20th day of March, 1899, was then and there in Jackson county, a contractor, and then and there had a contract with one Lewis M. Rowland, the owner of certain premises known as No. 4030 East Seventh street in Kansas City, Jackson county, Missouri, to furnish materials and to do work on the construction of a building at said number and did then and there purchase materials, to-wit, 200 bunches of W. P. laths, of the value of $ 25; 10 pieces of 2X10-12 No. 1 Y. P. of the value of $ 3.40, and 5 pieces 1X12-16 2 W. P. of the value of $ 1.68, on credit, from the Current River Lumber Company, a corporation, and did then and there unlawfully, falsely and fraudulently represent to the said Current River Lumber Company, at the time of said purchase, that the said materials were to be used in the said building at No. 4030 East Seventh street and thereafter he the said Gregory did unlawfully and fraudulently use and cause to be used the said materials in the construction of a building and improvement other than the designated building at No. 4030 East Seventh street, without having first obtained the written consent of the said Current River Lumber Company from whom said materials were purchased, to so use the said materials on such other buildings with the intent to defraud the said lumber company of said materials, against the peace and dignity of the State.
There was evidence tending to prove the charges in the indictment sufficient to require the case to be submitted to the jury.
Various errors are specified and we proceed to dispose of them.
I. The chief point is that the act is unconstitutional because it is class legislation and denies the defendant the equal protection of the laws and imposes upon a building contractor penalties not imposed upon other persons in like situations. That laws which give mechanics, contractors, and materialmen liens on the buildings upon which they work and for the construction of which they furnish materials, are constitutional, has been decided in a great many well-reasoned cases. It was so held at an early day in this State.
Such laws have been held not to deprive persons of their property without due process of law and are not class legislation. [Quale v. Moon, 48 Cal. 478; Summerlin v. Thompson, 31 Fla. 369, 12 So. 667; Warren v. Sohn, 112 Ind. 213, 13 N.E. 863; Va. Devel. Co. v. Crozer Iron Co., 90 Va. 126, 17 S.E. 806.]
Our statute which gave the defendant a lien as a contractor on the buildings for which he ostensibly purchased the laths and other lumber from the Current River Company is not unconstitutional because it singled out contractors and materialmen as a class, because all persons "who are, or who may come into like situations and circumstances" are treated alike by its provisions. [Humes v. Railroad, 82 Mo. 221; Ibid v. Ibid, 115 U.S. 512.] But while our laws give the materialmen liens for the materials furnished for the erection of a building or improvement, the lien is not allowed for materials furnished to the contractor to go into a building but not put into it by him. [Deardorff v. Everhartt, 74 Mo. 37; Henry & Coatsworth Co. v. Evans, 97 Mo. 47, 10 S.W. 868; Schulenberg v. Home Institute, 65 Mo. 295; Simmons, Garth & Co. v. Carrier, 60 Mo. 581; Fitzpatrick v. Thomas, 61 Mo....
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