255 Mo. 152 | Mo. | 1914
Appellants were prosecuted in the court of criminal correction, in the city of St. Louis, upon separate informations charging them with
Upon trials before juries, each of the appellants was found guilty, and Maurer was fined fifty dollars, and the others one hundred dollars each.
These cases, as Mrs. Malaprop might have said, have been “pendulating” between this court and the St. Louis Court of Appeals since judgments were rendered therein by the trial court in 1910, experiencing a difficulty not unlike that encountered by Noah’s dove on its first voyage — their ambulatory history being thus noted in the records: The constitutional validity of the statute upon which the prosecutions were based, having been questioned in the motions in arrest of judgment, the cases were appealed to this court, where it was held that the constitutional question had not been timely raised and the cases were ordered transferred to the St. Louis Court of Appeals. Upon hearings there, the judgments of the trial court were reversed in an opinion by Allen, J., in which Nortoni, J., concurred, and Reynolds, J., dissented, in a separate opinion, in which he held that the majority opinion was in conflict with a previous decision of the Supreme Court, whereupon the cases were again transferred to this court for final determination.
The facts and the assignments of error being practically the same in these cases, we will, for convenience, consider them together; where different, we will review them separately.
These sections are as follows:
“Sec. 650. Imitation butter defined. — For the purpose of sections 650 to 662 of this article, every article, substitute or compound, other than that produced from pure milk, or cream from the same, made in the semblance of butter and designed to be used as a substitute for butter made from pure milk, or cream from the same, is hereby declared to be imitation butter.”
*161 “Sec. 657. Offering imitation butter for sale.— No person, by himself or another, shall sell or offer for sale any substance designed to be used for a substitute for butter under the name of or under the pretense that the same is butter.”
The contention of the appellants is that the informations are invalid in failing to charge the offense in the language of section 650, in addition to that of section 657, upon which the informations are drawn. These sections are each complete in themselves, and. while appellants do not so expressly state, the implication necessarily follows from their contention that section 650 is to be regarded as a definitive or an interpretation clause of section 657, and, if so, it is necessary in charging an offense under said section to employ in addition to its own language, that of section 650, on the ground that the latter embraces a part of the constituent elements of the offense.
The rule is not questioned that an information or indictment based upon a statute defining an offense unknown to the common law is sufficient if drawn in the express language of the statute, if it contains all the constituent elements of the offense; if not, these elements must be added. [State v. Harroun, 199 Mo. 519.] The reason for thé charging of all the elements constituting an offense is, first, that the accused may be fully informed of the charge made against him; second, that the court may be enabled to determine whether the facts stated constitute an offense upon which a proper judgment may be rendered; and, third, that the judgment may be a bar to a future prosecution for the same offense. [Arch. Cr. Pl. 42, 43; Comm. v. Pray, 13 Pick. (Mass.) 359, 363; Clark’s Cr. Pr. 150.] No such difficulty can arise in the cases at bar; the informations charge the offense in the express lan-' guage of the statute, which is clear and unequivocal, and add that the substance designed to be used as a
The prime purpose of the statute is to protect the public against fraud, to enable purchasers to obtain what they intend to buy, and, as an incident thereto, to discourage, by the imposition of fines, the manufacture of or dealing in the articles designated. While it is not necessary to violate the rule in regard to the strict construction of criminal statutes, in order to sustain the sufficiency of the informations in the instant cases, such a narrow construction should not be made as will, in effect, defeat the intent and purpose of the Legislature. As was well said by Fekriss, J., in State v. Lovan, 245 Mo. l. c. 532, “when an information, taken as a whole, clearly advises the defendant that he is charged with an offense as defined by the statute, and clearly sets forth the facts on which the charge is based, it is sufficient.” And in State v. Woodward,
However, without the substitution of “or” for “and” in section 650, an information or indictment drawn upon section 657, with the addition of the word “oleomargarine,” as it appears in these informations, will be sufficient. The addition of this word to that of the express language of the statute, is, in effect, the same as the use of the words “made in the semblance of butter,” oleomargarine being thus defined by the act of Congress in relation thereto (Act of Congress, Aug. 2, 1886, Chap. 840), and in many judicial interpretations of the words (Braun v. Coyne, 125 Fed. 331; Comm. v. Vandyke, 9 Pa. Dist. 49; Butler v. Chambers, 36 Minn. 69; 29 Cyc. 1475), as well as the meaning given it by the standard lexicographers; from all of which “the court will be presumed,” as Judge Brown has pithily said in a recent case, “to know what everybody else knows,” and judicial cognizance will, therefore, be taken of the fact that oleomargarine is a substance made in the semblance of butter; from which reasoning it follows that the informations were not
In construing informations based upon statutes of the character of the one in question, not a little consideration should be given to the purpose of the act, which is beneficent, but also to the grade of the offense, greater latitude being exercised by the courts in the construction of statutes defining misdemeanors to prevent frauds and in sustaining informations or indictments based thereon, than those which have to do with graver offenses and more immediately affect individuals than the general public.
The terse reasoning of Reynolds, J., in State v. Rouelle, 137 Mo. App. l. c. 623, is appropriate in this connection. It is as follows: “The matter for our determination in a case of this kind, that is to say, any of this class of misdemeanors, is, to endeavor to ascertain whether the information substantially charges an offense, aimed at by the statute, with sufficient particularity to apprise the defendant of the act with which he is charged and to serve as a bar to a further prosecution of him for the same offense. We do not propose, in handling cases under these statutes . . . to indulge in unnecessary technicalities or refinements of reason. . . . The information in this case . . . charges this offense with sufficient particularity, to advise this defendant with what he is charged. ’ ’ This is all the appellants can demand, or that the law requires.
This measure of sufficiency of an information charging a misdemeanor, is affirmatively stated in State v. Hogle, 156 Mo. App. l. c. 372, in which Nixon, J., citing State v. Fletcher, 18 Mo. l. c. 427; State v. Nelson, 19 Mo. l. c. 396, and State v. Seiberling, 143 Mo. App. l. c. 321, says: ‘ ‘ The same nicety is not required
While this court has not, heretofore, in the discussion of informations or indictments based upon this statute, given particular consideration to the inter-' pretation of the section on which these charges are based, its deductions, as attested by the adjudicated cases having reference to kindred sections, are in accord with the conclusions reached here.
In State v. Bockstruck, 136 Mo. 335, an information was based on section 2 of the original act (now Sec. 651, R. S. 1909). The information contained all the substantial allegations of the section, but none of the express language of section 650, yet the charge was held sufficient to sustain a conviction.
The phraseology of the information in State v. Newell, 140 Mo. 282, was similar to that employed in the Bockstruck case, supra, and was based on the same section of the statute; it, however, contained none of the language of section 650, but was, nevertheless, held to properly charge the offense under the statute.
In State v. Stocker, 80 Mo. App. 354, an information was based on section 2, Laws 1895, p. 26 (now Sec. 651, R. S. 1909), which charged the offense in the language of that section, without reference to section 650, and the information was held to be sufficient.
The sufficiency of these informations is, therefore, in our opinion, established by reason, as well as authority.
The following authorities here and elsewhere support this conclusion: State v. Jaques, 68 Mo. 260; State v. Haney, 151 Mo. App. l. c. 253; State v. Merget, 129 Mo. App. 46; Commonwealth v. Lampton, 4 Bibb (Ky.), 261; State v. Cooney, 72 N. J. L. 76.
In a Pennsylvania case it was said of a statute with regard to the sale of oleomargarine: “The prohibition is absolute and general; it could not be expressed in terms more explicit and comprehensive. The statutory definition of the offense embraces no ' word implying that the forbidden act shall be done knowingly or wilfully, and, if it did, the design and purpose of the act would be practically defeated. The intention of the Legislature is plain, that persons engaged in the traffic shall engage in it at their peril, and that they cannot set up their ignorance of the nature and qualities of the commodities they sell, as a defense.” [Commonwealth v. Weiss, 139 Pa. St. 247, 23 Am. St. 182, 11 L. R. A. 530, note. So in Indiana, Isenhour v. State, 157 Ind. 517, 87 Am. St. 228; Strong v. State, 2 Ohio N. P. 93, 3 Ohio Dec. 284; Bissman v. State, 9 Ohio Cir. Ct. Rep. 714; State v. Kelly, 54 Ohio St. 166.]
The minority opinion of the St. Louis Court of Appeals is in full accord with the conclusions made
From all of the foregoing, we are of the opinion that the conclusions reached in the majority opinion of the St. Louis Court of Appeals, in each of the cases under review, should be overruled, and that the judgments rendered therein by the court of criminal correction should be affirmed, and it is so ordered.