State v. Martin , 5 Mo. 361 ( 1838 )

Edwards, Judge,

delivered the opinion .of the court.

This was an indictment against Martin in the circuit court of New Madrid eounty. On motion of the defendant, the indictment was quashed, and the State appealed,

The indictment charges, that on the day and year, and at the place therein mentioned, “with force and arms, at the county of New Madrid aforesaid, in the State of Missouri aforesaid, unlawfully, for and in consideration of the sum (to wit:) of one dollar, then and there had and received of one Ebenezer Oldham, he, the sai dEnoeh Martin, then and there did sell, retail and deliver unto the-said Ebenezer Oldham, six yards of cloth, commonly called Kentucky cotton linen, without first obtaining a merchant’s license, him the said Enoch Martin, to authorize to deal as a merchant.”

The defendant contends that this indictment is defective: 1. In not alleging that the defendant did deal in the selling of goods, wares and merchandise. 2. In not alleging the sale to have been made at any store, stand, or place occupied for that purpose.

An indictment, uuder the act to license and tax merchants, charging that “def. did sell, retail and deliver six yards of cloth, without first obtaining a license,” &c. is bad, the law being directed against those who “deal in the selling of goods, wares, and merchandise,” “at any store, stand,” &c„ The indictment must pursue the words of the statute.

The first section of the act to license and tax merchants, (Revised Code of-1835, page 403,) provides that “every person, or copartnership of persons, who shall deal in the selling of goods, wares or merchandise, at any store, stand, or place occupied for that purpose, is declared to be a merchant/’ The second section provides, that “no person, or copartnership, shall deal as a merchant without a license first obtained according to law.” “It is a general rule that all indictments upon statutes, must state all the circumstances which constitute the definition of the offence in the act, so as to bring the defendant precisely within it.” A conclusion contrary to the form of the statute, in such case made and provided, will not aid a defect in this respect; “and not even the fullest description of the offence, were it even in the -terms of a legal definition, would be sufficient without keeping close to the expressions of the statute” —1 Chit. Crim.Law, 281-2. In his summary of the law relative to pleadings and evidence in criminal cases, page 28, Archbold says, “that an indictment for an offence against the statute, must, with certainty and precision, charge the defendant to have committed or omitted the acts, under the circumstances and with the intent mentioned in the statute, and if any one-of these ingredients be omitted, the defendant may demur, move in arrest of judgment, or bring a writ of error.” The offence intended to be charged in this indictment, is the dealing “in the selling of goods, wares or merchandise at a store, stand or place occupied for that purpose,” “without a license first obtained according to law.” Does this indictment charge this offence? It charges that Martin “did sell, retail and deliver” six yards of cloth. These are not the words of the statute,nor are they even the equivalent of the words of the statute, and even equivalent words would not be sufficient. The statute did-not intend that every man who sold a single article should be deemed a merchant. Had that been the intention, the language of the statute would have been, every person who shall sell goods, wares or merchandise, shall be deemed a merchant. The language of the statute is very different. It is, that every person who shall deal in the selling of goods, wares or merchandise, &c. shall be deemed a merchant. To deal in the selling of a thing, is to traffic; to trade in the selling of it, to make a business of it. A single act of selling then, will not constitute a person a merchant; he must deal in the business to be one. Omitting then to charge that Martin did “ deal in the selling of goods, wares and merchandise,” is clearly a defect in this indictment. The words “at any store, stand, or place occupied for that purpose,” are also omitted. If the other words had been charged, and these omitted, the indictment would still have been bad. He might have been dealing in goods, wares and merchandise as a pedler, going from place to place, and if so, could not have been indicted as a merchant. The judgment of the circuit court should, therefore, be affirmed, and the other judges concurring, it is affirmed.