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32 Mo. 566

State v. Cox

Supreme Court of Missouri

Decided July 15, 1862

Supreme Court of Missouri · decided 1862-07-15

The defendant was indicted at the September term, 1860, of the Christian Circuit Court, before P. EL Edwards, judge, for dealing as a merchant, under an act to license and tax merchants, (Acts 1858-9, p. 54, § 2,) without taking out license. At the March term of the court for the year 1861, the defendant filed his motion to quash, which was sustained by the court, and the State appealed.

Relies on State v. Shiflett · State v. Martin · State v. Hunter

Good law ✅— No negative treatment on recordhow we know

Decided 1862-07-15

How this case has been cited

Cited by 18 later decisions — most recently April 1938

18 state decisions

5018621870188018901900191019201930decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Bates, Judge,

¶1delivered the opinion of the court.

¶2The indictment charges that the defendant did “ unlawfully sell at a certain store, stand and place, occupied by him for that purpose, various articles of goods, wares and mer*568chandise, and drugs and medicines, the names of which are unknown to said grand jurors, without having any license or legal authority whatever to sell the same, contrary to the statute,” &c.

¶3On motion of defendant, the court quashed the indictment.

¶4The statute (Acts 1858-9, p. 53) provides that “ every person or copartnership of persons who shall deal in the selling of goods, wares and merchandise, at any store, stand or place occupied for that purpose, is declared to be a merchant; ” and that “ no person or copartnership of persons shall deal as a merchant without a license first obtained according to law.”

¶5The essence of the offence is the dealing as a merchant without a license. The single act of selling one or more articles would not constitute the offence; and if the sale of a specific article were charged, it would be necessary also to charge that the defendant did deal as a merchant. (State v. Hunter, 5 Mo. 360; State v. Martin, 5 Mo. 361.) This indictment, however, charges that the defendant did sell at a store, stand and place occupied for that purpose, various articles of goods, wares and merchandise, thus defining the defendant as a merchant dealing without license.

¶6It was not necessary to aver that the goods were not of the manufacture or production of this State. “ It is a well settled rule, that when a statute contains provisos and exceptions in distinct clauses, it is not necessary to state in the indictment that the defendant does not come within the exceptions, or to negative the provisos it contains.” (State v. Shiflett, 20 Mo. 417.)

¶7Whilst the indictment is inartificially drawn, and is not recommended as a precedent, it cannot be said that it con-contains any defect or imperfection which tends to the prejudice of the substantial rights of the defendant upon the merits. (R. C. 1855, p.1176-7.)

¶8Judgment reversed, and cause remanded for further proceedings.

Judges Bay and Dryden concur.
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