44 Mo. App. 429 | Mo. Ct. App. | 1891
The defendant was indicted for selling, and exposing to sale, unwholesome meat. The indictment contained two counts. The first charged the defendant with the actual sale of the meat, but, as the court instructed the jury that there was no evidence to warrant a conviction on that count, its consideration is unnecessary. The second count charged the defendant with exposing for sale for human food, at a public market, a quantity of flesh meat, as and for sound and wholesome flesh meat fit for human food, when in truth and fact it was not so and the defendant knew it. There was a motion to quash this count of the indictment on the ground, that it charged no offense against the laws of the state of Missouri. This motion the court overruled, and properly so, because the exposure of unwholesome provisions for sale in open market as food was indictable at common law (1 Bishop, Crim. Law, sec. 491), and offenses at common law are indictable in this state and punishable by imprisonment not exceeding two months and fine not exceeding $100. R. S. 1879, secs. 3117, 3118.
The defendant was convicted and sentenced to pay a fine of $100. He assigns for error on this appeal that the evidence offered by the state was insufficient to warrant his conviction; that the court erred in admitting illegal evidence against him, and that it misdirected the jury.
In support of the first assignment the defendant first claims that the venue was not proven. There was no direct evidence that the alleged offense was committed in Monroe county, but there was ample circumstantial evidence to enable the jury to arrive at that conclusion, and that is sufficient. State v. Chamberlain, 89 Mo.
The state contends that the defendant is not in a position to raise this question, because his own instructions submitted to the jury the character of the meat and his knowledge of its condition. The defendant first demurred to the evidence, and, his demurrer being overruled, he asked two instructions telling the jury that, to warrant his conviction, they must find that the animal was diseased, that its flesh was unwholesome for human food, and that the defendant knew of its diseased condition. The rule, which permits slight evidence against a party to be eked out by admissions contained in his instructions, has no application to criminal cases where it is the duty of the court to charge the jury, nor can we see how these instructions contain any admissions on part of the defendant except that
If there was no^evidence of knowledge to warrant a conviction, the defendant’s instructions could not supply such evidence. We find there was no evidence of knowledge, and, deeming knowledge an essential ingredient of the offense, we must reverse the judgment.
Judgment reversed and prisoner discharged.