78 W. Va. 404 | W. Va. | 1916
The defendant wan indicted and convicted for an alleged •violation of §1, ch. 43, Acts 1915; §36, ch. 145, Barnes’ Code 1916. That statute forbids, and for a violation thereof penalizes, “any person, firm, corporation or association, or their agents or employees, who with intent to sell or in any wise dispose of merchandise, securities, service, or anything offered by such person, firm, corporation or association, directly or indirectly, to the public for sale or distribution, or with intent to increase the consumption thereof, or to induce the public in any manner to enter into any obligation relating thereto, or to acquire title thereto, or an interest therein, causes, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in this state, in a newspaper or- other publication, or in the form of a book, notice, hand-bill, poster, bill, circular, pamphlet or letter, or in any other way, an advertisement of any sort regarding merchandise, securities, service, or anything so offered to the public, which advertisement contains any assertion, representation or statement of fact which is untrue and deceptive, knowing or having reason to believe that such assertion, representation or statement is untrue or deceptive.”
The indictment, when summarized, charges that on May 30, 1915, in Mercer county, the defendant, general manager of the U. S. Woolen Mills Company, “then and there situate”, did, with intent to sell suits of men’s clothing, unlawfully cause to be published in the Bluefield Telegraph, a newspaper published and generally circulated in that county, an untrue and deceptive advertisement, which he then knew or had reason to believe was false and deceptive, to the effect that the woolen _ mills company would give each purchaser of a fifteen dollar suit of men’s clothing a palm beach suit free, when that company did not give or intend to give a suit known as a palm beach suit to such purchaser, but did intend to give and did give him a suit of an inferior grade and quality. Except the phrase “then and there situate”, the indictment does not aver that the U. S. Woolen Mills Company was engaged in business of any character or for any purpose, or had possessed or offered for sale merchandise of any character, in Mer-
It can not be said, as counsel for the state contend, that the indictment need allege only the publication and dissemination of the advertisement; that these averments suffice. If that be true, no necessity existed to supplement them by proof of an actual sale of a fifteen dollar suit and the bestowal upon the purchaser free a suit as to the quality and grade of which much testimony was offered on the trial of the case. Under that contention, the introduction of the advertisement and proof of its falsity would have sufficed. But how could it be shown to be false unless put to the test of an actual sale of one of the advertised suits and a gift of the other suit.
Wherein or to what extent the advertisement is false or de-’ ceptive within the intendment of the statute, or the basis for the conclusion that the defendant knew or had reason to believe the assertion, representation or statement therein contained was untrue or deceptive, or how he had or could have obtained that knowledge, or to whom he sold a fifteen dollar suit and failed to deliver free a palm beach suit, the in
, The failure to aver an actual sale of a suit of clothing to some designated person, and a failure or refusal to respond to the offer by the tender and delivery of the promised free gift as an element in determining the truth or falsity of such promise, we think renders the indictment informal, insufficient and defective. The statute is penal; and an indictment charging a "violation thereof must aArer Avith precision all the constituent elements of the-crime. With these requirements there Avas a total failure to comply. For these reasons,- Ave reverse the judgment of conviction, sustain the motion to quash, and discharge the accused.
Reversed, indictment quashed, accused discharged.