State v. Lief

ROY, C. The defendant was convicted on both counts of an information, the first count charging him with having in his possession, with intent to sell, a bottle filled with soda water which was adulterated with saccharine, which is alleged to be poisonous and injurious to health. The second count charged him with having in his possession, with intent to sell, a bottle filled with soda water, which bottle was misbranded by having blown thereon the words “Phos-Ferrone M’f’g Co.” The defendant filed separate motions to quash each of the counts of the information. The only parts of the motion necessary to be here considered are as follows: 4 4 Third. Because said first count does not charge the defendant with having committed any crime or misdemeanor under the laws of Missouri. “Fourth. Because the said amended information is multifarious and several counts are improperly united in said amended information. 4 4 Fifth. Because the statute, 6595, Revised Statutes, Missouri for 1909, under which this prosecution is based, is in violation of section 4 and section 30 of article 2 of the Constitution of Missouri. ” Both those motions were overruled. On the first count the evidence showed that the bottles of soda water in question were delivered to the [726] city chemist, but it fails to show whether the contents were analyzed. There is no evidence of any kind that the'contents were adulterated. On the second count the evidence tended to show that the defendant had in his possession, with the intent to sell, bottles filled with soda water and that the bottles had blown therein the words ‘1 The contents of this bottle manufactured by the Phos-Ferrone Manufacturing’ Company, Phos-Ferrone.” There was also evidence showing that soda water and Phos-Ferrone are different substances, and their names indicate a different composition. Election I. "Where several misdemeanors are charged in different counts it is a matter in the discretion of the ccmr^ whether the State shall be put to an election. [1 Bishop’s New Crim. Prac. sec. 452; State v. Pigg, 85 Mo. App. 399; State v. Kibby, 7 Mo. 317.] constitutional Law. II. Appellant claims that the last sentence in section 6605, Revised Statutes 1909, requiring the fines recovered under the provisions of that article to be paid into the State treasury is in contravention of section 8.of article 11, of our State Constitution, which requires that such fines shall go into the school fund of the several counties. We concede such claim. The defendant goes further and asserts that such fact invalidates all the penal features of that statute. We think otherwise. That provision is clearly separable from the other parts of the statute and does not affect them in the least. [Haag v. Ward, 186 Mo. l. c. 339; Finck v. Granite Co., 187 Mo. 244.] [727] Non-Aichoi¡cp. Drinks. [726] III. The claim is made that the Foods and Drugs Law of 1907 did not cover non-alcoholic drinks, and [727] that the act of April 7, 1911 (Laws 1911, 261), was an interpretation of the law to that effect and was intended to supply the deficiency. Section 6593 provides: “The term ‘food,’ as used in this article, shall include all articles used for food, drink, confectionery or condiment by man or animal, whether simple, mixed or compound. ” It is vain to contend that non-alcoholic drinks are not “used for drink” within the meaning of the Act of 1907. An examination of the amendment of 1911 will reveal that there were other reasons for the amendment than the one claimed by'the appellant. They are too numerous to be set out here. Misbranding. IV. While the second count does not use the language of the statute in charging the offense, it does sufficiently charge the offense. It is not . , -,. . necessary that the . misbranding be charged under section 6597/ That is the section in reference to drugs. It sufficiently charges under section 6596 that the bottle bore a statement, design or device regarding its contents which was false as to the person, firm or corporation by whom the contents were made. Conviction on two counts: Reversal and Affirmance. V. Appellant makes the point that he has been convicted of two offenses, one under each count, both based on the same transaction and characterized by only one intent — the intent to sell. Without discussing the merits of that proposition, we say that as there is no evidence of any adultération under the first count we will reverse the judgment on that count and affirm the'judgment on the second count. It is so ordered. Williams, C., concurs. PEE CIJEIAM. — The foregoing opinion of Eoy, C., is adopted as the opinion of the court. All the judges concur.