45 Mo. 575 | Mo. | 1870
delivered the opinion of' the court.
Defendants were prosecuted by information for exercising the trade and business . of merchants without license; and it was shown that they were officers and agents of the Collier White Lead and Oil Company, a St. Louis corporation engaged in the manufacture .of white lead. The evidence failed to show that the manufactured article was kept on hand and exposed for sale by the company, but it did show that its agents were in the habit of receiving orders at the manufactory from wholesale dealers,
The court, at the instance of the defendants, held as declara-? tions of law that .if the company for whom .they acted, or if the defendants themselves, were engaged in manufacturing white lead upon written or verbal orders, and “ did not at anytime keep on hand for sale, or offer or expose for sale, or sell, any white lead that was manufactured and complete or ready for delivery at the ■ time the same was ordered,” then defendants were not merchants,, and it did not matter if the company had on hand large amounts. of carbonized lead, tiff, and oil, out of which to manufacture-the white lead to fill the orders. The substance of this position, was held by the court in three declarations of law, but the court refused to make the following: “Before the State can convict in. this case, it must establish beyond a reasonable doubt that the • defendants exercised the business of merchants in the ■ city and county of St. Louis; that is to say, they must be shown to have ■ kept on hand ready-manufactured white lead for sale, or to have - sold the same, ready-made, at their factory or place of business ;, and that the burden of establishing these facts is upon the State;. and they can not be inferred from the mere fact that orders were-left at the factory for white lead, which were subsequently filled.” To this refusal the defendants excepted, and the court-finding - them guilty, they appeal.
The statute (Wagn. Stat. 987, § 1) defines a merchant as fol- - lows: “Every person, or co-partnership of persons, who shall deal in the selling of goods, wares, or merchandise', including; clocks, at any store, stand, or place occupied for that purpose, is -
In the case at bar, the court conceded everything to defendants so far as the interpretation of the statute is concerned, and must have adopted not only the principle of the case of State v. West, but also to the full extent the opinion of Judge Dryden, who declares that “ to be n merchant in the sense of the law, the dealer must have on hand goods, wares, and merchandise ready for sale and present-delivery, and must actually deal in the selling of the same. One who manufactures and supplies goods alone to the previous order of his customers, although he keeps on hand, but not for sale, the materials from which the manufactured articles are produced, is not a merchant within the meaning of the statute.” ' It may be said that there is no' difference in principle between -filling orders with the manufactured lead kept on hand for that purpose, and mixing and grinding out the manufactured materials after the orders come in. Perhaps not, but the defendants received the benefit of this distinction, and they can not complain of it.
The only question, then, raised by the record pertains to the evidence. To make the declarations of law consistent with the finding, the court must have held that the State made a prima facie case; that it was sufficient to show that-the defendants, after receiving orders -from their customers, filled them the same and succeeding days; that the natural inference would be that they kept the article on hand. And to rebut this inference it was not sufficient to show that they might have manufactured the lead after the orders were received, but they should have shown that they did so manufacture it.
The State must always make out a case. The accused must be presumed. innocent until the facts necessary to establish guilt
The other judges concurring, the judgment will be affirmed.