33 Mo. 457 | Mo. | 1863
delivered the opinion of the court.
At the July term, 1860, of the St. Louis Criminal Court, the defendant was indicted for dealing as a merchant in the selling of goods, by selling one thousand hams, which were not unmanufactured articles, the growth or produce of this or any other State, at a place occupied by the defendant for that purpose, without having a license therefor. At the trial, it appeared that defendant was a pork-packer; that he purchased hogs and cut them up and cured hams, some of which he habitually sold at his place of business in St. Louis, and others he shipped to other markets for sale.
The defendant asked the following instruction, which was refused by the court:
“ If it is shown by the evidence that the defendant was, at the time alleged in the indictment, a pork-packer, and that in carrying on his business he purchased hogs, alive or slaughtered, or both, and also purchased hams in an uncured or unmanufactured state, and cut up said hogs so purchased and cured hams therefrom, and cured the hams purchased in an uncured state, and, in his usual business as pork-packer*459 and curer of hams, incidentally sold hams thus cured or manufactured at a store, stand or place occupied for the purpose of pork-packing, without having obtained'a merchant’s license, then said act of selling such manufactured articles is not unlawful, and the defendant cannot on that account be convicted of the charge contained in the indictment.”
The essence of the offence charged is the dealing as a merchant without a license. The single act of selling one or more articles would not constitute the offence. (State v. Cox, 32 Mo. 566.) In this case it appears that selling hams was a part of the regular business of defendant.
The statute defines a merchant to be a person who deals in the selling of goods, wares, and merchandise, at any store, stand or place occupied for that purpose. We cannot go beyond the statute to find any other definition of a merchant.
It is immaterial that the defendant, by his labor, changed the form of the goods sold. If he dealt in selling them at a store, stand or place occupied for that purpose, he is a merchant (for the purpose of this act); and it is also immaterial that the store, stand or place may have been also occupied for some other purpose.
Judgment affirmed.