State v. Maurer

156 S.W. 991, 174 Mo. App. 162, 1913 Mo. App. LEXIS 99

Opinions

ALLEN, J.

Defendant was convicted of selling a substance designed to be used as a substitute for butter, under the name of and under the pretense that the same was butter. The information charges that the defendant “in the city of St. Louis, on the 15th day of October, 1909, did, by a clerk, at No. 8 South Jefferson avenue, in said city, unlawfully sell and offer for sale a substance designed to be used as a substitute for butter, to-wit, oleomargarine,” etc.

The prosecution is based upon section 657, Revised Statutes 1909, and the information does not charge that the substance which it is alleged the defendant sold or offered to sell was “imitation butter,” or made in the semblance of butter. In State v. Shortell, just decided, it was held by a majority of this court that an information in this form failed to charge an offense under the statute, and was insufficient to support a conviction. For the reasons there given the information here must be held to be fatally defective.

It is unnecessary to touch upon the other questions involved in the ease. The judgment of the St. Louis Court of Criminal Correction should be reversed and the cause remanded.

Nortoni, J., concurs.

Reynolds, P. J., dissents in a separate opinion, and as he deems the decision rendered herein to be contrary to that of the Supreme Court in State v. Bockstruck, 136 Mo. 335, 38 S. W. 317, and in State v. Hilton, 248 Mo. 522, 154 S. W. 729, and to other decisions cited in his dissenting opinion, he asks that the cause be certified to the Supreme Court, which is accordingly done.