| Mo. | Jul 15, 1862
delivered the opinion of the court.
The indictment charges that the defendant did “ unlawfully sell at a certain store, stand and place, occupied by him for that purpose, various articles of goods, wares and mer
On motion of defendant, the court quashed the indictment.
The statute (Acts 1858-9, p. 53) provides that “ every person or copartnership of persons who shall deal in the selling of goods, wares and merchandise, at any store, stand or place occupied for that purpose, is declared to be a merchant; ” and that “ no person or copartnership of persons shall deal as a merchant without a license first obtained according to law.”
The essence of the offence is the dealing as a merchant without a license. The single act of selling one or more articles would not constitute the offence; and if the sale of a specific article were charged, it would be necessary also to charge that the defendant did deal as a merchant. (State v. Hunter, 5 Mo. 360" court="Mo." date_filed="1838-05-15" href="https://app.midpage.ai/document/state-v-hunter-6609979?utm_source=webapp" opinion_id="6609979">5 Mo. 360; State v. Martin, 5 Mo. 361" court="Mo." date_filed="1838-05-15" href="https://app.midpage.ai/document/state-v-martin-6609981?utm_source=webapp" opinion_id="6609981">5 Mo. 361.) This indictment, however, charges that the defendant did sell at a store, stand and place occupied for that purpose, various articles of goods, wares and merchandise, thus defining the defendant as a merchant dealing without license.
It was not necessary to aver that the goods were not of the manufacture or production of this State. “ It is a well settled rule, that when a statute contains provisos and exceptions in distinct clauses, it is not necessary to state in the indictment that the defendant does not come within the exceptions, or to negative the provisos it contains.” (State v. Shiflett, 20 Mo. 417.)
Whilst the indictment is inartificially drawn, and is not recommended as a precedent, it cannot be said that it con-contains any defect or imperfection which tends to the prejudice of the substantial rights of the defendant upon the merits. (R. C. 1855, p.1176-7.)
Judgment reversed, and cause remanded for further proceedings.