State v. Markus

Missouri Court of Appeals

State v. Markus

153 S.W. 488, 171 Mo. App. 38, 1913 Mo. App. LEXIS 584

DecidedFebruary 4, 1913

StatusPublished

This text of 153 S.W. 488 (State v. Markus) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Markus, 153 S.W. 488, 171 Mo. App. 38, 1913 Mo. App. LEXIS 584 (Mo. Ct. App. 1913).

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Opinion

NO'RTONI, J.

Defendant was convicted of a misdemeanor and prosecutes this appeal from that judgment. The charge laid against him pertains to the selling of a barrel of vinegar, labeled cider vinegar, to a- grocer, which, it is said, was not cider vinegar.'

The statute on which the prosecution is based is-as follows:

“Any person who manufactures for sale or offers or exposes for sale as cider vingegar, any vinegar not the legitimate product of pure juice known as apple cider, or vinegar not made exclusively of said apple cider, or vinegar into which foreign substances, drugs or acids have been introduced, as may appear on proper tests, shall be deemed guilty of a misdemeanor and, upon conviction thereof, be punished for every offense by fine of not less than fifty dollars nor more than one hundred dollars, and the cost of prosecution, or by imprisonment in the county jail not to exceed ninety days.” [Sec. 4841, E. S. 1909.]

Omitting formal and immaterial portions thereof, the information charges as follows: “That Philip Markus, in the city of St. Louis, on the 10th day of August, 19091, did sell and offer for sale to one Henry Sextro, one barrel of Anegar labeled and branded as cider vinegar, which was not the legitimate product of pure apple juice and was not made exclusively from apple cider.”

[41]*41It will be observed that tbe offense denounced by tbe statute above quoted, and wbicb this information purports to charge, pertains to the sale or offer for sale “as cider vinegar” any vinegar not the legitimate product of pure juice known as apple cider. Obviously the element of deceit with respect to the character of the vinegar sold is the gravamen of the offense, for the statute is leveled against one who sells or offers or exproses for sale “as cider vinegar” any vinegar, etc. The information fails to charge that defendant sold Sextro a barrel of vinegar “as cider vinegar,” but alleges that he sold to one Henry Sextro one barrel of vinegar labeled and branded as cider vinegar. It is clear the information charges no offense against defendant, for though, as alleged, the one barrel of vinegar sold was labeled and branded as cider vinegar, it does not charge that defendant sold the vinegar to. Sextro “as cider vinegar.” Where the indictment or information is based upon a statute creating the offense — an offense unknown to the common law — it must set forth and charge every constituent fact required by the statute and necessary to bring the accused fully within the statutory provision. [See State v. Gabriel, 88 Mo. 631.] Under this statute it is no offense for one to sell to another a barrel of vinegar marely labeled and branded as cider vinegar, but instead he must sell it to him as cider vinegar. It would seem that the element of deceit is of- the gravamen of the offense, and unless it is so charged no crime is laid.

For the reasons stated, the information is insufficient and the judgment should be reversed and the. cause remanded. It is so ordered.

Reynolds, P. J., and Allen, J., concur.

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NO'RTONI, J.

Defendant was convicted of a misdemeanor and prosecutes this appeal from that judgment. The charge laid against him pertains to the selling of a barrel of vinegar, labeled cider vinegar, to a- grocer, which, it is said, was not cider vinegar.'

The statute on which the prosecution is based is-as follows:

“Any person who manufactures for sale or offers or exposes for sale as cider vingegar, any vinegar not the legitimate product of pure juice known as apple cider, or vinegar not made exclusively of said apple cider, or vinegar into which foreign substances, drugs or acids have been introduced, as may appear on proper tests, shall be deemed guilty of a misdemeanor and, upon conviction thereof, be punished for every offense by fine of not less than fifty dollars nor more than one hundred dollars, and the cost of prosecution, or by imprisonment in the county jail not to exceed ninety days.” [Sec. 4841, E. S. 1909.]

Omitting formal and immaterial portions thereof, the information charges as follows: “That Philip Markus, in the city of St. Louis, on the 10th day of August, 19091, did sell and offer for sale to one Henry Sextro, one barrel of Anegar labeled and branded as cider vinegar, which was not the legitimate product of pure apple juice and was not made exclusively from apple cider.”

[41]*41It will be observed that tbe offense denounced by tbe statute above quoted, and wbicb this information purports to charge, pertains to the sale or offer for sale “as cider vinegar” any vinegar not the legitimate product of pure juice known as apple cider. Obviously the element of deceit with respect to the character of the vinegar sold is the gravamen of the offense, for the statute is leveled against one who sells or offers or exproses for sale “as cider vinegar” any vinegar, etc. The information fails to charge that defendant sold Sextro a barrel of vinegar “as cider vinegar,” but alleges that he sold to one Henry Sextro one barrel of vinegar labeled and branded as cider vinegar. It is clear the information charges no offense against defendant, for though, as alleged, the one barrel of vinegar sold was labeled and branded as cider vinegar, it does not charge that defendant sold the vinegar to. Sextro “as cider vinegar.” Where the indictment or information is based upon a statute creating the offense — an offense unknown to the common law — it must set forth and charge every constituent fact required by the statute and necessary to bring the accused fully within the statutory provision. [See State v. Gabriel, 88 Mo. 631.] Under this statute it is no offense for one to sell to another a barrel of vinegar marely labeled and branded as cider vinegar, but instead he must sell it to him as cider vinegar. It would seem that the element of deceit is of- the gravamen of the offense, and unless it is so charged no crime is laid.

For the reasons stated, the information is insufficient and the judgment should be reversed and the. cause remanded. It is so ordered.

Reynolds, P. J., and Allen, J., concur.

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153 S.W. 488, 171 Mo. App. 38, 1913 Mo. App. LEXIS 584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-markus-moctapp-1913.

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