90 Mo. App. 156 | Mo. Ct. App. | 1901
Lead Opinion
The information is bottomed on section 10 of tire Beer Inspection Act, approved May 4, 1899 (Session
“Sec. 10. Any person who shall sell any beer or malt liquor within this State which has not been inspected according to the provisions of this act, or contained in packages which shall not have upon them the certificate of the State inspector, or any person shall fail to destroy said certificate or label after the contents of said package are disposed of, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine not exceeding five hundred dollars or by imprisonment irt the county jail for a period of not less than six months, and in addition thereto- shall have his license or other authority, giving him the right to manufacture or sell said liquors in this State revoked, and shall not again receive any such license or other authority for a period of two years thereafter.”
This section creates three distinct and separate offenses. The first may be committed by a brewer or producer of malt liquors who sells the same within this State without causing it to be first inspected by the State inspector. Second, by a person selling any beer in this State contained in packages which do not have upon them the certificate of the State inspector certifying that the beer contained in the packages has been inspected. Third, by any person who, after having disposed of the contents of a package upon which a State inspector’s certificate had been placed, shall fail to destroy such certificate. By section three of the act it is made the duty of a manufacturer or .brewer of beer to cause the same to be inspected by the State inspector before selling it in this State. Section seven of the act imposes upon the State inspector the duty of inspecting beer manufactured in this State and, when by his analysis the beer is of the required purity, to place his label or certificate on the package containing such beer. The certificate or label provided for by the act is an official docu
The information does not allege that Broeder was a brewer or that he produced the beer contained in the package which he is alleged to have sold. It alleges that the package did not then and there “at the time and place of . sale” have upon it “the label and certificate of the State inspector of beer certifying that said beer had then and there been inspected.” This language imports that the beer had not been inspected at the time and place of sale and did not have upon it the State inspector’s certificate of the fact that it had -been then and there inspected and stamped with the official certificate. All of this
II. The words “then and there,” at the conclusion of the charging clause in the information, can not be rejected as surplusage for the reason that they are descriptive of both time and place when and where it is alleged the beer should have been inspected and labeled, and go to the substance of the offense. State v. Gibson, 111 Mo. 92.
III. The contention that the information should negative the fact that the beer was sold for exportation, is without merit. The exception in the act in respect to beer for exportation is not contained in the section creating the offense, and is not descriptive of the offense, and is, therefore, a matter of defense. State v. Bockstruck, 136 Mo. 335; State v. Smith, 60 Mo. App. 283.
IV. We are not impressed with the argument of appellant’s counsel that ffiabel” and “certificate” as named in the act have a different signification and that it is a label and not a certificate mentioned in the act that the inspector is required to place on the packages of beer. Section seven requires the inspector, after he has made the inspection if he finds the product of standard purity, to “place upon the packages containing such beer or malt liquor his label, certifying that the same has been inspected and made from wholesome ingredients;”
Eor the error of the trial court in overruling defendant’s motion to quash the information, the judgment is reversed and the cause remanded with leave to the prosecuting attorney of Montgomery county to amend the information if he is so advised.
Rehearing
ON MOTION NOR REHEARING.
It is contended by appellant that the cause should not be remanded with leave to the -prosecuting attorney to amend the information:
Eirst, for the reason (as alleged in the motion) that the information failed to charge any offense and for that reason is not amendable, and
Second, that section 2481, Revised Statutes 1899, that authorizes the amendment of an information, is opposed to
The obvious purpose of the above statutes and others of a like character, to be found in the code of criminal practice, is to prevent the release of one accused of a crime and let him go free and thus give him an opportunity to escape without a legal trial, after he has once been brought into court to answer an -indictment or information and there is probable cause to believe him guilty. And it seems to us that where the right is
When an attempt by information has been made to charge the defendant of a crime, and he is before the court to answer the charge intended to be made against him, it would be a perversion of both the spirit and intent of the code of criminal procedure to discharge him before a valid information could be filed against him by the prosecuting officer for the reason the first information was insufficient to charge the offense intended to be charged.
The constitutional question raised by the motion is beyond our jurisdiction, as it was not raised in the trial court in a manner that will authorize us to certify the case to the Supreme Court.
The motion for a rehearing is overruled.