The State v. Thierauf

• Decision Date: 11 March 1902
• Parties: THE STATE v. THIERAUF, Appellant
• Court: Missouri Supreme Court

67 S.W. 292

167 Mo. 429

THE STATE v. THIERAUF, Appellant

Supreme Court of Missouri, Second Division

March 11, 1902

Appeal from St. Louis Court of Criminal Correction. -- Hon. Willis H. Clark, Judge.

Reversed.

Thomas P. Bashaw for appellant.

The information is bad pleading. Using merely the language of the statute, it alleges that the label designated such compound "in part by words and general design," etc., and "was in part the same to the eye," etc., but does not aver in what part or in what respect; and that defendant was not the first to use said words, "wholly or in part and said general design;" thus failing to point out any words or designs alleged to be in imitation of complainant's label. Again, it simply alleges that defendant "with intent to defraud did," etc without naming the person, firm or corporation to be defrauded; nor is it averred that the intent was to defraud some person or persons to affiant unknown. Defendant had a right to know whether he was charged with an intent to defraud the Centaur Company or the public. In the one case the evidence and the proof to be collected to meet the charge would be essentially different from that required in the other. For this reason a general averment of an intent to defraud is not sufficient. The intent to defraud is the gist of the offense. Without it there is no case, under the section named.

Edward C. Crow, Attorney-General, and Jerry M. Jeffries for the State.

(1) It is not necessary that every section of an act should be constitutional in order that the entire act may be constitutional. The section attacked by the appellant is one under which he is not prosecuted, and is clearly separable from the remainder of the act, and the remainder of the act when separated from this section would constitute a sufficient law to cover the offense. In such a case, it is immaterial whether such section is or is not constitutional. State ex rel. v. Ins. Co., 152 Mo. 48. Sections 10368 and 10369, Revised Statutes 1899, as well as other sections of this amendatory act are practically the same as sections 8573 and 8574, Revised Statutes 1889; and sections 8573 and 8574, Revised Statutes 1889, are the same as sections 7546 and 7547, Revised Statutes 1879. There is very little change in the law and if the amended Act of 1893 should fall by reason of its unconstitutionality because of a defective passage through both houses or irregularity in its enactment, the conviction would still be legal under the statute this amended act purports to repeal. An unconstitutional act does not repeal a prior valid act. State ex rel. v. Wardell, 153 Mo. 319. When an act is to displace an old law and substitute a new one which is unconstitutional, the repealing clause falls and will not affect the old act in any manner. Especially would this be true if the unconstitutionality of the new law was solely upon the ground of irregularity in the manner in which it was enacted. State v. Thompson, 138 Mo. 95. The act has been expressly held not to be unconstitutional on the ground that it is class legislation. This was so held under the law as it existed previous to the amendatory Act of 1893, but the amended law seems only to reach out and take in labels and persons and business that before were not included. The defendant would be liable and is liable under the law as it stood previous to this amendment. State v. Bishop, 128 Mo. 337; State v. Burlinsheimer, 62 Mo.App. 168. All statutes are presumed to be constitutional. State ex rel. v. Aloe, 152 Mo. 466; State v. Thompson, 144 Mo. 314. It has been held that the title to an act is no part of the act itself. State ex rel. v. Saline County, 51 Mo. 350. (2) The appellant questions the sufficiency of the information in this cause upon the theory that the information should set out that the trade-mark had been adopted according to the requirements of the first section of this chapter of our laws, which is section 10365, Revised Statutes 1899. It seems to us that this section of the statute can not be interpreted as mandatory, but that it must be held merely as directory. A person can pursue this manner of adopting a trademark. The statute must be interpreted that the owner of the trade-mark may file the same and not that he must file it in order that the public may secure the protection of this law. Hall & Robinson v Railroad, 80 Mo.App. 463.

GANTT, J. Sherwood, P. J., and Burgess, J., concur.

OPINION

GANTT, J.

The second count of the information upon which alone the defendant was tried and convicted, was as follows:

"And the assistant prosecuting attorney aforesaid, now here in court, on behalf of the State of Missouri, further information makes as follows:

"That Benjamin Chieraun, on the twenty-fifth day of September, 1900, in the city of St. Louis and State of Missouri, with intent to defraud did unlawfully and knowingly sell and expose and offer for sale, certain bottles containing a compound and preparation, generally known as and called 'Castoria,' with a certain label brand, wrapper and imprint affixed to and upon them which then and there designated such compound and preparation in part by words and by general design, and which said label, brand and wrapper and imprint was as follows:

[SEE ILLUSTRATION IN ORIGINAL]

"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 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:

[SEE ILLUSTRATION IN ORIGINAL]

"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 word 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 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,

"Asst. Pros. Attorney St. Louis Court of Criminal Correction.

"State of Missouri,

City of St. Louis,

"Chas. H. Camp being duly sworn, upon his oath, says that the facts stated in the above information are true.

"Chas. H. Camp.

"Sworn to and subscribed before me this -- day of September, 1900.

Alfred J. Wagenmann,

"Clerk of the St. Louis Court of Criminal Correction.

"(Seal.) By B. L. Niedur, Deputy Clerk."

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 twelfth 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 the cause submitted to the court without a jury, and resulted in a finding of guilty and the assessment of a fine of $ 100.

Defendant appeals.

At the time of the commencement of this prosecution, the defendant was a chemist in the employ of the Palestine Drug Company of St. Louis, in whose place of business he was arrested.

The Centaur Company is a corporation under the laws of the State of New York, engaged in manufacturing medicines, one of which is known as "Castoria," a compound which was first concocted in 1870 by one Dr Pitcher, in Boston, who obtained a patent for it. ...