State v. Surkamp

156 S.W. 991, 174 Mo. App. 174, 1913 Mo. App. LEXIS 100

Opinions

ALLEN, J.

The information in this case charges that the defendant, “on the 8th day of October, 1909, did, by a clerk, at stand No. 63 Union Market, in the city of St. Louis and State of Missouri, 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 the same statute which we had under consideration in State v. Shortell, just decided, and here, as there, the information fails to 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. For the reasons given in the Shortell case this information must be held insufficient to support a conviction.

Other questions involved need not be discussed. 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.