State v. Maurer

164 S.W. 551, 255 Mo. 152, 1914 Mo. LEXIS 12

• Court: Supreme Court of Missouri
• Decided: February 17, 1914
• Status: Published

Opinion

WALKER, P. J.

Appellants were prosecuted in the court of criminal correction, in the city of St. Louis, upon separate informations charging them with violations of section 657, Revised Statutes 1909 (originally enacted as Sec. 6, Laws 1895, p. 26), in having sold oleomargarine under the pretense that the same was butter. A,side from, formal matters and that the defendants in the Maurer and Surkamp cases made the sales by clerks, the informations are identical in alleging that the defendant “did unlawfully sell and offer for sale a substance designed to be used as a substitute for butter, to-wit, oleomargarine, under the name of and under the pretense that the same was butter,” etc.

Upon trials before juries, each of the appellants was found guilty, and Maurer was fined fifty dollars, and the others one hundred dollars each.

These cases, as Mrs. Malaprop might have said, have been “pendulating” between this court and the St. Louis Court of Appeals since judgments were rendered therein by the trial court in 1910, experiencing a difficulty not unlike that encountered by Noah’s dove on its first voyage — their ambulatory history being thus noted in the records: The constitutional validity of the statute upon which the prosecutions were based, having been questioned in the motions in arrest of judgment, the cases were appealed to this court, where it was held that the constitutional question had not been timely raised and the cases were ordered transferred to the St. Louis Court of Appeals. Upon hearings there, the judgments of the trial court were reversed in an opinion by Allen, J., in which Nortoni, J., concurred, and Reynolds, J., dissented, in a separate opinion, in which he held that the majority opinion was in conflict with a previous decision of the Supreme Court, whereupon the cases were again transferred to this court for final determination.

The facts and the assignments of error being practically the same in these cases, we will, for convenience, consider them together; where different, we will review them separately.

Appellants contend that the informations charge no offense; that the testimony was insufficient to sustain the prosecutions; that the trial court erred in the exclusion of testimony, and that certain remarks of counsel for the State constituted reversible error.

Headings of no apartSófetC’’ Law. I. The headings of chapters, articles or sections are not to be considered in construing our statutes; these indicia are mere arbitrary designations inserted for convenience of reference by clerks or revisers, who have no legislative authority, and are, therefore. powerless to lessen or expand the letter or meaning of the law. [Ferguson v. Gentry, 206 Mo. 189, 195; State v. Doerring, 194 Mo. 398, 414; Logan v. Fidelity Co., 146 Mo. 114, 122; Huff v. Alsup, 64 Mo. 51.] This observation is made preliminary to a review of the statutes upon which the informations are based, on account of references in the majority opinion of the Court of Appeals to these headings as aids to construction.

Sufficiency of Information II. A review of sections 1 and 6 of the original act of 1895 (Laws 1895, p. 26), which have been carriéd forward in the same words in the reUsion of. 1909, as sections 650 and 657, is necessary in determining the sufficiency of the informations in these cases.

These sections are as follows:

“Sec. 650. Imitation butter defined. — For the purpose of sections 650 to 662 of this article, every article, substitute or compound, other than that produced from pure milk, or cream from the same, made in the semblance of butter and designed to be used as a substitute for butter made from pure milk, or cream from the same, is hereby declared to be imitation butter.”

“Sec. 657. Offering imitation butter for sale.— No person, by himself or another, shall sell or offer for sale any substance designed to be used for a substitute for butter under the name of or under the pretense that the same is butter.”

The contention of the appellants is that the informations are invalid in failing to charge the offense in the language of section 650, in addition to that of section 657, upon which the informations are drawn. These sections are each complete in themselves, and. while appellants do not so expressly state, the implication necessarily follows from their contention that section 650 is to be regarded as a definitive or an interpretation clause of section 657, and, if so, it is necessary in charging an offense under said section to employ in addition to its own language, that of section 650, on the ground that the latter embraces a part of the constituent elements of the offense.

The rule is not questioned that an information or indictment based upon a statute defining an offense unknown to the common law is sufficient if drawn in the express language of the statute, if it contains all the constituent elements of the offense; if not, these elements must be added. [State v. Harroun, 199 Mo. 519.] The reason for thé charging of all the elements constituting an offense is, first, that the accused may be fully informed of the charge made against him; second, that the court may be enabled to determine whether the facts stated constitute an offense upon which a proper judgment may be rendered; and, third, that the judgment may be a bar to a future prosecution for the same offense. [Arch. Cr. Pl. 42, 43; Comm. v. Pray, 13 Pick. (Mass.) 359, 363; Clark’s Cr. Pr. 150.] No such difficulty can arise in the cases at bar; the informations charge the offense in the express lan-' guage of the statute, which is clear and unequivocal, and add that the substance designed to be used as a substitute for butter was “oleomargarine.” If it be admitted, therefore, that section 650 is an interpretation clause of section 657, no necessity existed under the rules of criminal pleading for the insertion of any of the words of the former section in an information based on the latter, and such insertion would have been, as we will presently show in discussing the meaning of the word oleomargarine, redundant and expletory. However, without violating any of the canons of construction, or defeating the purpose of the statute, or, in any way, aggravating the offense, section 650 may be construed to be an interpretation clause, not only of section 657, but of the other sections (Secs. 651-657) defining offenses in the original act, provided the wording of said section (650) be interpreted as was the evident intention of the Legislature when it was enacted. This may be accomplished by inserting the word “or” instead of the word “and” between the words “butter” and “designed,” so that the portion of said section (650) under discussion shall read “made in the semblance of butter or designed to be used as á substitute for butter,” etc. While it has been held that the word “and” cannot be read “or,” or vice versa, in criminal statutes, this ruling is subject to qualifications, and is opposed to the greater weight of authority, many cases holding that a conversion of these words, one into the other, is permissible, although it may operate to .the’ disadvantage of the accused when the spirit and reason of the law plainly require and justify it. [Potter’s Dwarris, p. 296; State v. Long, 238 Mo. l. c. 392; Rolland v. Comm., 82 Pa. St. 306, 326; U. S. v. Moore, 104 Fed. 78; Swearingen v. U. S., 161 U. S. 446, 450.] The limitation on this rule is that the conversion should not be made when the effect would be to aggravate the offense or increase the punishment. [State v. Walters, 97 N. C. 489, 2 Am. St. 310.] The application of the rule to the cases at bar cannot by any reasonable interpretation be said to have this effect. That it was the intent and purpose of the Legislature to use the word “or” instead of “and,” as we have indicated, will become evident upon a comparison of the different sections of the statute under review. To illustrate: • Section 651 denounces the making’, selling, keeping, or offering for sale, substances “made in the semblance of butter,” while each of the other sections (652-657) define offenses in regard to marking, shipping under its true name, branding mixtures and renovated butter, having unmarked containers. in possession, and offering for sale, not “substances made in the semblance of butter,” but, as expressly stated in each of said sections, substances which “may be designed to be used as substitutes for butter.” Thus construed, section 650 may reasonably serve as an interpretation clause to all of the succeeding sections of said act, the phrase in regard to substances “made in the semblance of butter,” being applicable to section 651 alone, and that expressed in the words “designed to be made as a substitute for butter” applying to each of the other sections.

The prime purpose of the statute is to protect the public against fraud, to enable purchasers to obtain what they intend to buy, and, as an incident thereto, to discourage, by the imposition of fines, the manufacture of or dealing in the articles designated. While it is not necessary to violate the rule in regard to the strict construction of criminal statutes, in order to sustain the sufficiency of the informations in the instant cases, such a narrow construction should not be made as will, in effect, defeat the intent and purpose of the Legislature. As was well said by Fekriss, J., in State v. Lovan, 245 Mo. l. c. 532, “when an information, taken as a whole, clearly advises the defendant that he is charged with an offense as defined by the statute, and clearly sets forth the facts on which the charge is based, it is sufficient.” And in State v. Woodward, 182 Mo. l. c. 407, Gantt, J., said: “While criminal statutes are to he strictly construed in favor of the defendant, the courts are not authorized to so interpret them as to defeat the obvious purpose of the Legislature or so to narrow the words of the statute as to exclude cases which those words in their ordinary acceptation would include. ” Toso narrowly construe the statute as to require an indictment or information bottomed on section 657 to contain, in addition to the words of the section, the words “made in the semblance of butter” would have no other effect than to defeat the purpose of the law, because any substances designed to be used as substitutes for butter, the manufacture or sale of which are intended to be prohibited, are not made in the semblance of butter. This the Legislature must have known and, therefore, the substitution of “or” for “and” but effectuates the legislative will.

However, without the substitution of “or” for “and” in section 650, an information or indictment drawn upon section 657, with the addition of the word “oleomargarine,” as it appears in these informations, will be sufficient. The addition of this word to that of the express language of the statute, is, in effect, the same as the use of the words “made in the semblance of butter,” oleomargarine being thus defined by the act of Congress in relation thereto (Act of Congress, Aug. 2, 1886, Chap. 840), and in many judicial interpretations of the words (Braun v. Coyne, 125 Fed. 331; Comm. v. Vandyke, 9 Pa. Dist. 49; Butler v. Chambers, 36 Minn. 69; 29 Cyc. 1475), as well as the meaning given it by the standard lexicographers; from all of which “the court will be presumed,” as Judge Brown has pithily said in a recent case, “to know what everybody else knows,” and judicial cognizance will, therefore, be taken of the fact that oleomargarine is a substance made in the semblance of butter; from which reasoning it follows that the informations were not only drawn in the language of the particular section defining the offense, but state all the constituent elements which it is contended should be included therein by reason of section 650.

In construing informations based upon statutes of the character of the one in question, not a little consideration should be given to the purpose of the act, which is beneficent, but also to the grade of the offense, greater latitude being exercised by the courts in the construction of statutes defining misdemeanors to prevent frauds and in sustaining informations or indictments based thereon, than those which have to do with graver offenses and more immediately affect individuals than the general public.

The terse reasoning of Reynolds, J., in State v. Rouelle, 137 Mo. App. l. c. 623, is appropriate in this connection. It is as follows: “The matter for our determination in a case of this kind, that is to say, any of this class of misdemeanors, is, to endeavor to ascertain whether the information substantially charges an offense, aimed at by the statute, with sufficient particularity to apprise the defendant of the act with which he is charged and to serve as a bar to a further prosecution of him for the same offense. We do not propose, in handling cases under these statutes . . . to indulge in unnecessary technicalities or refinements of reason. . . . The information in this case . . . charges this offense with sufficient particularity, to advise this defendant with what he is charged. ’ ’ This is all the appellants can demand, or that the law requires.

This measure of sufficiency of an information charging a misdemeanor, is affirmatively stated in State v. Hogle, 156 Mo. App. l. c. 372, in which Nixon, J., citing State v. Fletcher, 18 Mo. l. c. 427; State v. Nelson, 19 Mo. l. c. 396, and State v. Seiberling, 143 Mo. App. l. c. 321, says: ‘ ‘ The same nicety is not required in drawing indictments in cases of minor offenses as is required in charging common-law felonies.”

While this court has not, heretofore, in the discussion of informations or indictments based upon this statute, given particular consideration to the inter-' pretation of the section on which these charges are based, its deductions, as attested by the adjudicated cases having reference to kindred sections, are in accord with the conclusions reached here.

In State v. Bockstruck, 136 Mo. 335, an information was based on section 2 of the original act (now Sec. 651, R. S. 1909). The information contained all the substantial allegations of the section, but none of the express language of section 650, yet the charge was held sufficient to sustain a conviction.

The phraseology of the information in State v. Newell, 140 Mo. 282, was similar to that employed in the Bockstruck case, supra, and was based on the same section of the statute; it, however, contained none of the language of section 650, but was, nevertheless, held to properly charge the offense under the statute.

In State v. Stocker, 80 Mo. App. 354, an information was based on section 2, Laws 1895, p. 26 (now Sec. 651, R. S. 1909), which charged the offense in the language of that section, without reference to section 650, and the information was held to be sufficient.

The sufficiency of these informations is, therefore, in our opinion, established by reason, as well as authority.

Name of Purchaser. IIL The name of the purchaser of the oleomargarine was not a necessary allegation in charging the offense. Where the name of a person other than the accused is not essential to the description of the offense, as it was not in these cases, or the offense does not involve the commission of a trespass against the person or property of another, thereby becoming an essential ingredient of the offense, its omission from an indictment or information is not error. [State v. Pollock, 105 Mo. App. l. c. 277.] This rule has been repeatedly announced in this State in cases charging violations of the liquor laws; and for like reasons we are of the opinion it is equally applicable in cases charging infractions of the pure food laws. In charging violations of the liquor laws and in the concrete cases, the offenses consist in the sales of the prohibited articles; the rule, therefore, authorizing the omission of the name of the purchaser from the charge may be applied with equal propriety to either class of cases, and we so hold.

The following authorities here and elsewhere support this conclusion: State v. Jaques, 68 Mo. 260; State v. Haney, 151 Mo. App. l. c. 253; State v. Merget, 129 Mo. App. 46; Commonwealth v. Lampton, 4 Bibb (Ky.), 261; State v. Cooney, 72 N. J. L. 76.

False Pretenses. IY. There is no merit in appellants’ contention that the informations are insufficient in not specifying the pretense under which the sales were made. The instant cases embrace offenses wholly foreign to those requiring a compliance with the rules of criminal pleading applicable to charges of false pretenses; they charge violations of a statute, the purpose of which is to regulate the dealing in and selling of an article which common experience has demonstrated is a fertile source of fraud and deception, and they are sufficient in charging the offenses in the language of the statute.

Intent etc. Y. The criminality of the offenses charged did not depend upon the intent with which the sales were made, but the fact that they were made, hence, it was no^ necessary to allege that appellants knew the article sold was oleomargarine; the act of selling and not the operation of the mind of the seller at the time of the sale constituted the crime. Under this state of facts no averment of knowledge or intent was necessary other than is involved in a statement of the offense. [State v. Sakowski, 191 Mo. 635, 645; State v. Kentner, 178 Mo. 487, 493; State v. McCollum, 44 Mo. 343, 345; State v. Haney, 130 Mo. App. 95.]

In a Pennsylvania case it was said of a statute with regard to the sale of oleomargarine: “The prohibition is absolute and general; it could not be expressed in terms more explicit and comprehensive. The statutory definition of the offense embraces no ' word implying that the forbidden act shall be done knowingly or wilfully, and, if it did, the design and purpose of the act would be practically defeated. The intention of the Legislature is plain, that persons engaged in the traffic shall engage in it at their peril, and that they cannot set up their ignorance of the nature and qualities of the commodities they sell, as a defense.” [Commonwealth v. Weiss, 139 Pa. St. 247, 23 Am. St. 182, 11 L. R. A. 530, note. So in Indiana, Isenhour v. State, 157 Ind. 517, 87 Am. St. 228; Strong v. State, 2 Ohio N. P. 93, 3 Ohio Dec. 284; Bissman v. State, 9 Ohio Cir. Ct. Rep. 714; State v. Kelly, 54 Ohio St. 166.]

Quantum of Evidence. VI. Unless there is an absence of substantial evidence to sustain the verdict, the finding of the jury, who are the judges of the facts, will not ^g disturbed. While not required to do so, except to determine if there is any substantial evidence, we have examined the transcript of the testimony in these cases and find no lack of proof of appellants’ guilt. [State v. Barton, 214 Mo. 316, 321; State v. Sassaman, 214 Mo. 695, 737; State v. Chenault, 212 Mo. 132, 137.]

Exclusion of Testimony. VII. No testimony was excluded which, if admitted, would have tended to sustain the defense made by the appellants; they were, therefore, not prejudiced in this regard and will not be heard to complain.

Instructions. VIII.The instructions taken as a whole fairly-presented the law of the ease, and are subject to no objection upon which can be based a substantial ground of error.

Remarks ofAttorney. IX. Appellants have not neglected to wield that “trenchant blade, Toledo trusty,” which from much use hath ne’er grown rusty, as one of the assignments of error deemed sufficient to effect a reversal, to-wit, the remarks of the prosecuting attorney. A review of the testimony discloses that in one instance the remarks were prompted by the argument of counsel for the defense, and in the other that they consisted of argumentative deductions based upon the evidence. Measured by the multiplied illustrations found in the reports of this form of assignment of error, we do not find these in question to have been prejudicial, and consequently not a substantial ground of error.

Sales by Agent. X. In two of the cases at bar the proof showed that the sales were made by clerks of the appellants. The language of the statute is that “no person, by himself or another, shall sell or offer for sale,” etc. The sales by the clerks, as shown by the evidence, were made in the ordinary course of business. If made against the order of the principals, this was a matter of defense. [State v. Bockstruck, 136 Mo. 335, 350.] Under statutes similar in phraseology to the one on which these informations are based, it has been held by a number of courts of last resort that when a sale is made by an agent or clerk it is sufficient if the information or indictment so charges, and proof of a sale in such a manner will constitute prima-facie evidence of guilt. [See cases cited under Sec. 601, p. 768, Thornton on Pure Pood and Drugs.]

The minority opinion of the St. Louis Court of Appeals is in full accord with the conclusions made herein and would have been adopted as the opinion of this court but for the fact that it discusses and disposes of a number of questions not assigned as grounds of error here.

From all of the foregoing, we are of the opinion that the conclusions reached in the majority opinion of the St. Louis Court of Appeals, in each of the cases under review, should be overruled, and that the judgments rendered therein by the court of criminal correction should be affirmed, and it is so ordered.

Brown and Baris, JJ., concur.