State v. Bockstruck

136 Mo. 335 | Mo. | 1896

Shekwoob, J.'

1. The evidence already detailed was sufficient to authorize a conviction of defendant under the charge contained in the information; and the fact that the sale in question was made by a young clerk of defendant’s, made out against defendant a prima facie case, inasmuch as the sale occurred in defendant’s store, in apparently the ordinary course of business. State v. McCance, 110 Mo. 398. If the sale was made against the order of the owner, this was matter of defense. Ibid.; State v. Baker, 71 Mo. 475.

2. Nor is the conclusion just announced as to the sufficiency of the evidence at all affected by the fact relied on by the defendant’s counsel that the information does not “charge nor the proof show what was combined with the animal fat to give it a yellow color,” nor because the information does not allege nor the proof show that such substance thus combined was either “annatto or a compound of the same.”

There are several reasons which support this view:

First, it was entirely competent for the information to allege that certain substances were “also compounded with other substances which are to the informant unknown, for the purpose and with the effect of imparting thereto a yellow color,” etc. The rule ejusclem generis urged for the defense, is wholly inapplicable to a statutory section worded like section 2. The words which immediately follow “any annatto or compound of the same” effectually take this clause of the section out of the operation of the rule announced in Schuehmann's case, 133 Mo. Ill, and bring it within the rule laid down in St. Louis v. Bowler, 94 Mo. 630.

And doubtless the words immediately succeeding those just quoted were inserted for the express purpose of avoiding the necessity of proving just what substance or substances were used to impart to the mixture a yellow color,, etc. Just so the substance used had that “effect," it was entirely immaterial under the statute what substance was used. This point being thus determined supports the sufficiency of the information in this regard and of course, the evidence offered in support of the questioned allegation.

3. But it is urged that the information is insufficient in another respect, to wit: That it does not negative the proviso contained in section 2.

The latter clause of that section just below that proviso is the one on which the information is bottomed. This is a distinct and independent clause, and the rule in such cases is that where an affirmative offense will appear without reference to the proviso or exception, there such proviso or exception need not be negatived in the indictment or information. In other words, if the ingredients constituting the offense are capable of exact definition without reference to the exception or proviso, there such reference may with safety be omitted, ■ since such matter contained in the exception, etc., is not descriptive of the offense, but only matter of defense to be brought forward by the accused. 1 Bishop, Crim. Proc. [3 Ed.], secs. 632-636; U. S. v. Cook, 17 Wall. 168; State v. Buford, 10 Mo. 704; State v. Shiflett, 20 Mo. 417; State v. Cox, 32 Mo. 566; State v. Sutton, 24 Mo. 377; State v. Meek, 70 Mo. 355; State v. O'Brien, 74 Mo. 549.

Elsewhere the same rule finds expression to the effect that where the statute creates a general offense, an offense not limited to a particular class of persons or conditions; where it is intended to impose the stamp of criminality on an entire class of actions, and not upon only such actions as are committed by particular persons or in a particular way; in such case the mere excusatory defense is not required to be negatived by the written accusation. Wharton, Crim. PI. & Prac. [9 Ed.], sec. 241.

And it is well settled in this state also, and on like reasoning, that it is needless to negative exceptions contained in a subsequent section to that which defines the offense. State v. O’Gorman, 68 Mo. 179; State v. Doepke, Ibid., 208; State v. Jaques, Ibid. 261.

So that counsel’s contention that the information should have negatived the exception in section. 5 of the act before us can not prevail. Indeed it would be without parallel in criminal pleading to require the accusation based on a section defining one offense, to negative an exception in another and subsequent section which section creates another and distinct offense.

4. It is claimed on behalf of defendant that the act under review is violative of several constitutional provisions, which will now be noticed.

Section 28 of article 4 of our constitution forbids that any bill shall “contain more than one subject, which shall be clearly expressed in its title.”

In State ex rel. v. Mead, 71 Mo. 266, in considering this constitutional provision it was ruled that the title of an act “concerning popular elections” was a sufficient compliance with the constitutional mandate aforesaid, and a sufficient indicator of what the body of the act contained, notwithstanding one of the sections of the act authorized the governor to fill vacancies occurring in elective offices by temporary appointments, such power thus conferred on the governor being regarded as germane to the subject treated of in the title.

See, also, St. Louis v. Weitzel, 130 Mo. loc. cit. 614 et seq., where a charter provision identical in language with the constitutional provision above noticed, was discussed and a like ruling applied.

In New Jersey under a similar constitutional provision, an act entitled, “an act relating to the assessment and revision of taxes in cities of this state,” was held not to infract the constitutional provision. in question notwithstanding the body of the act related to the mode of appointing the members of boards of assessment and revision in cases of taxation, and that the title sufficiently expressed the subject. State ex rel. v. Hammer, 42 N. J. L. 438.

Treating of this topic, Bishop tersely says: “The title need indicate the subject only in a general way, without entering into details; and all auxiliary provisions properly attaching to it, and constituting with it one whole, may be embraced within the enactment.” Statutory Crimes [2 Ed.], sec. 36a.

In consequence of this view section 5 of the act must be regarded as sufficiently indicated by the title of the act, and as not transgressing constitutional limitations.

' But it is not perceived that defendant has any apparent concern in section 5, since that section relates to an entirely different offense.

Now nothing is better settled than that a part of a law may be declared constitutionally invalid, and yet another portion properly separable therefrom, and therefore unexceptionable in every particular. This may be so even though the sound and unsound are in one section together. This is always the rule unless the parts sound and unsound are so mutually related, so blended together, as to constitute an entirety, making it evident that unless the act be carried into effect as a whole, it could not have received the legislative sanction. Bishop, Stat. Crim., sec. 34, and cases cited. There seems to be no such indication observable in this instance.

Section 53 of article 4 of the constitution is pressed upon our attention, and a poi’tion of that section quoted, to wit:

“The General Assembly shall not pass any local or special law; * * * Regulating the practice or jurisdiction of, or changing the rules of evidence in any judicial proceeding or inquiry before courts.”

After making this quotation, counsel then says:

“ Sec. 8 of the act provides: ‘Whoever shall have possession or control of any imitation butter, or any substance designed to be used as a substitute for butter, contrary to the provisions of this act, shall be construed to have possession of property with intent to use it, as a means of committing a public offense.’

“ While I consider the act itself as a general act, as it applies to everybody who handles imitation butter, yet the question arises, can the General Assembly by a general law create a new offense and in it change the rules of evidence as to that offense, without giving any warning in the title of the act as to the proposed change in the rules of evidence?

“In so far as the act changes the rules of evidence as to the offense condemned by the act, it is special.

“If all of this act had been already in the statutes except sections 5 and 8, and a new act containing the provisions of sections 5 and 8 only had been passed, it would undoubtedly have been a special law changing the rules of evidence:

“The question here arises, can the legislature pass a special law changing the rules of evidence, by injecting it into the body of a general law? And if so, can this be done without giving warning of the special feature of the title to the act?”

It will be seen that counsel admits that “the act itself is a general act.” If so, it is difficult to see how it could possibly become a special act merely because it changes the rules of evidence, nor how an act which creates a “ new offense” could be said to “change the rules of evidence,” as to a crime then for the first time created.

Acts are quite common making certain acts presumptive ox prima facie evidence of the commission of cértain crimes; their constitutionality can not, in circumstances like the present, be doubted. State v. Buck, 120 Mo. 479, and cases cited.

So that in no event could, the rules of evidence be said to have been changed in the present instance from what they have heretofore been in numerous similar cases, for. a valuable collection of which see Buck’s case, supra,

Of course if the act made something “conclusive evidence” of guilt as claimed by counsel it would be clearly unconstitutional, because thereby it would cut off all opportunity for one accused of its violation of offering any evidence in his defense. We regard the words of section 8, “shall he construed,” etc., as simply meaning that such acts as are therein mentioned, shall be deemed prima facie evidence of possession, etc.

Such has always been the rule of evidence at common law, as to the recent possession of stolen property and is the well established rule in this state. Such is the rule of evidence as to the possession by the accused of counterfeit coin or to the discovery of coining tools in his house, as affording presumptive evidence of his guilt of counterfeiting. 3 Rice, Evid. (Crim.) 783. And so of the possession of a forged instrument by a person who claims under it. State v. Yerger, 86 Mo. 33, and cases cited.

As to the sufficiency of the title of- the act, enough has already been said, but while on this point we have no hesitation in saying that the title would have been all that was necessary had it simply been “An act prohibiting the manufacture or sale of imitation butter.”

5. The evident object and dominating idea of section 2 when considered in connection with section 8 of the act, was to prevent the manufacture or sale of a spurious article of butter; and we consider that the state has the same right to forbid and punish the manufacture of counterfeit butter that it has to forbid and punish the manufacture of counterfeit coin.

The like view was taken by us of the validity of the act of 1881, in relation to the manufacture or sale of imitation butter (State v. Addington, 77 Mo. 110), though the latter act contained no such provisions as are contained in section 8 of the present act.

In Powell v. Com., 114 Pa. St. 265, a statute very much resembling that in Addington’s case was held unobjectionable on constitutional grounds, though the article was marked and sóidas “oleomargarine butter,” and was a wholesome and nutritious article of food, and Addington’s case was cited with approval. The judgment in Powell’s case was afterward affirmed by the supreme court of the. United States. Powell v. Pennsylvania, 127 U. S. 678.

In Minnesota a statute substantially identical to that in Addington’s case was held valid. Butler v. Chambers, 36 Minn. 69.

On similar grounds in Massachusetts a statute was held constitutional which prohibited the sale of milk, though adulterated with an admixture of only pure water. Com. v. Waite, 11 Allen, 264.

In New York a statute virtually the same as that of Pennsylvania, was ruled to be violative of the organic law because it prohibited the manufacture of an article designed to “take the place of butter or cheese produced from pure unadulterated milk, or cream of the same.” People v. Marx, 99 N. Y. 377.

In the subsequent case, however, of People v. Arensberg, 105 N. Y. 123, a later act, entitled as was the former one, “an act to prevent deception in the sale of dairy products,” was held valid, the only difference in the phraseology of the two acts being that the latter contained the words: “In imitation or semblance or designed to take the place of natural butter,” etc., and on this difference in the two acts a distinction was taken in favor of the validity of the latter act and against the former, on the ground that the latter act was aimed to prevent deception.

The great preponderance of authority sustains the view announced in Addington's case, the theory of which was the right of the state in the exercise of its police power to forbid the manufacture or sale of articles which could readily be used for the purposes of deception, although not perhaps designed originally for that purpose.

6. After the momentary digression in the preceding paragraph we resume the thread of contention made by defendant’s counsel. He claims that: Section 7 of the act concerning imitation butter provides that any person who violates it shall be fined or imprisoned “in the discretion of the court,” and that this section violates sections 22 and 28 of the bill of rights, the former section giving the right to “a speedy public trial by an impartial jury of the country;” the latter declaring: “The right of trial by jury, as heretofore enjoyed, shall remain inviolate.”

In the first place, section 7 does not permit an accused prosecuted for “the first offense” to be punished “in the discretion of the court;” such permission is only given upon conviction of the second offense; so that it is no concern of defendant’s that a second offense may be punished as indicated in section 7.

The offense created by the act before us is a misdemeanor, which is defined as “any indictable offense under a felony.” Anderson’s Law Diet. Or as our-statute has it, “every offense punishable only by fine- or imprisonment in a county jail, or both.” R. S. 1889, sec. 3975. This offense, then, being a misdemeanor,, it was competent for defendant under the terms prescribed by statute to waive a trial by jury just as he-did and submit his trial to the court whose finding-thereupon had the “force and effect of the verdict of a jury.” R. S. 1889, sec. 4190.

This section was first enacted in 1855. 2 R. S. 1855, p. 1189, sec. 2. This statute has been bn the statute books ever since, and thousands of convictions have-been had under it. - Gen. Stats. 1865, p. 848, sec. 2; R. S. 1879, sec. 1890. See, also, State v. Moody, 24 Mo. 560; State v. Larger, 45 Mo. 510.

This being the case, it can not be said that, defendant has been denied “the right of trial by jury as heretofore enjoyed,” since whatever was the status of that right at the time of the adoption of the constitution of' 1875, was the status referred to in that instrument. 1 Bishop, Grim. Proc. [3 Ed.], sec. 892; 3 Am. and Eng. Ency. of Law, 720, and cases cited.

As to that portion of section 7 which provides for thepunishmentof “each subsequent offense,” even were it regarded as unconstitutional, it would not, under the-rule announced in paragraph 4, affect the present conviction, because that portion of the section relating to subsequent offenses is readily separable from the portion which immediately precedes it. Nor is it true that the subsequent offense clause leaves the punishment as to such offenses “entirely in the discretion of the court,” since that discretion is limited in positive terms, to a fine not less than $250, nor more than $500,” etc. In short, it is no more in the absolute discretion of the court to fix the measure of punishment as to a subsequent offense, that is allowed to juries in many sections of the criminal code, and the exercise of this right on their part has hitherto remained unquestioned.

7. We do not consider it necessary to discuss the point whether the proviso in section 8 of the act is repugnant to section 30 of article 2 of our organic .law, in regard to deprivation of property without due process of law, nor to discuss whether it is likewise opposed to section 11 of the same article in regard to unreasonable searches and seizures, and we refrain from doing so for these reasons:

Defendant has been convicted after trial in due course of law and therefore is in no situation to invoke section 30 aforesaid; nor for a similar reason, can he invoke section 11 before mentioned, because his property has not been subjected to unreasonable search or seizure. It will be time enough to cross that bridge when fairly encountered on the highway of adjudication. x

8. But it is urged that section 11 of the act can not stand because it contravenes section 8 of article 11 of the constitution in reference to the destination of all fines imposed for violation of penal laws, relative to which it may be observed that under considerations previously set forth, that section of the statute may be stricken out or disregarded, and still leave a valid law intact and sufficient for the punishment of the offense with which defendant stands charged.

9. Finally, the point is made that the judgment herein is unauthorized by law in that it requires the fine to be paid “to the state of Missouri, for the use of the city of St. Louis.”

The judgment would undoubtedly have been in proper and usual form had it omitted the italicized words. Inasmuch, however, as there was no necessity for the judgment to specify to what purpose the fine should be applied; inasmuch as without any direction in the judgment therefor, it was the duty of the sheriff to pay over the fine to the proper representatives of the board of public schools of the city of St. Louis (In re Staed, 116 Mo. 537), and inasmuch as this is a case of misdemeanor, we shall order the judgment to be amended by striking out the unnecessary words, and as thus amended, we affirm it.

All concur.