164 Mo. App. 204 | Mo. Ct. App. | 1912
From a conviction upon a charge of having in his possession with intent to sell certain non-alcoholic drinks which were misbranded defendant has appealed.
The only question raised in this court goes to the sufficiency of the information which is as follows:
“J. H. Mason, prosecuting attorney within and for the county of Greene, in the State of Missouri, under his oath of office informs the court that R. E. Murphy, late of the county and state aforesaid, on the 26th day of July, A. D. 1911, at the county of Greene and state of Missouri, did then and there willfully and unlawfully have in his possession with intent to sell the same, certain non-alcoholic drinks, which nonalcoholic drinks were manufactured and produced by the said R. E. Murphy, to-wit: One bottle of Colo Coke, two bottles of Chocolate Soda, and one bottle of Strawberry Soda, which were then and there misbranded in this, that is to say, two of said bottles as aforesaid, were then and there branded Queen City Broom and Bottling Company, Springfield, Missouri, and two of said bottles were branded Scholten Bottling Company,' Springfield, Missouri, and all were marked registered, said bottles then and there bearing the name of manufactures other than the said R. E. Murphy, who was then and there using the same, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state.”
There are two objections to this information. First: Does not allege that “Queen City Broom and Bottling Company,” and “Scholten Bottling Com
Second: That it does not charge defendant with using the name of manufacturers other than himself.
This information is drawn under Session Acts 1911, pages 261 and 262, which is directed against the adulteration or misbranding of non-alcoholic drinks. The provisions of this act as far as applicable to this case are as follows:
“Section 1. Non-Alcoholic Drinks Not to be Adulterated or Misbranded. — That it shall be unlawful for any person, firm or corporate body, by himself, itself or themselves, or by his, her, its or their agents, servants or employees, to manufacture, sell, offer for sale, expose for sale, or have in possession with intent to sell, any article of non-alcoholic drink which is adulterated or misbranded, within the meaning of this act.”
Section 4. “That for the purpose of this act nonalcoholic drink shall be deemed to be misbranded. . . .
“Third: If the bottle or receptacle containing it be one bearing the name or brand of a manufacturer other than the one using it whether or not the latter attaches a label-to said bottle or receptacle so bearing a name or brand.”
The intention of the prosecutor was to charge the defendant with using the names of other manufacturers, to-wit, “Queen City Broom and Bottling Company,” and “Scholten Bottling Company,” upon his own goods. To make this charge in a legal way it is necessary to name the other manufacturers whose names the defendant is charged with using in order that he may know of what his alleged offense consists and that he may be able to prepare a defense if he has any. Unless the “Queen City Broom and Bottling Company,” or the “Scholten Bottling Company” was the name of another manufacturer the defendant cannot be guilty of a violation of the statute in using that name for he may use any name that he may wish upon
This information is also bad in not charging that the names used by defendant were the names of manufacturers. “Manufactures” and “manufacturers” are not idem sonans but are separate and distinct terms with separate and distinct meanings, the one meaning the. maker of the goods and the other the goods themselves. Judgment reversed and cause remanded.