State v. Broeder , 90 Mo. App. 156 ( 1901 )

BLAND, P. J.

The information is bottomed on section 10 of tire Beer Inspection Act, approved May 4, 1899 (Session Acts 1899, p. 230), which is as follows:

“Sec. 10. Any person who shall sell any beer or malt liquor within this State which has not been inspected according to the provisions of this act, or contained in packages which shall not have upon them the certificate of the State inspector, or any person shall fail to destroy said certificate or label after the contents of said package are disposed of, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine not exceeding five hundred dollars or by imprisonment irt the county jail for a period of not less than six months, and in addition thereto- shall have his license or other authority, giving him the right to manufacture or sell said liquors in this State revoked, and shall not again receive any such license or other authority for a period of two years thereafter.”

This section creates three distinct and separate offenses. The first may be committed by a brewer or producer of malt liquors who sells the same within this State without causing it to be first inspected by the State inspector. Second, by a person selling any beer in this State contained in packages which do not have upon them the certificate of the State inspector certifying that the beer contained in the packages has been inspected. Third, by any person who, after having disposed of the contents of a package upon which a State inspector’s certificate had been placed, shall fail to destroy such certificate. By section three of the act it is made the duty of a manufacturer or .brewer of beer to cause the same to be inspected by the State inspector before selling it in this State. Section seven of the act imposes upon the State inspector the duty of inspecting beer manufactured in this State and, when by his analysis the beer is of the required purity, to place his label or certificate on the package containing such beer. The certificate or label provided for by the act is an official documeat and when placed on a package containing beer is the official evidence, provided by the act, of the fact that the beer contained in the package has been duly inspected and may be lawfully sold within this State; without this certificate on the package the converse is true that the beer may not be lawfully sold in this State. In State ex rel. v. Wood, 155 Mo. 425, it was held that a reasonable construction of section seven of the act did not require the State inspector to open and inspect each package of beer, but provided a practical method of inspecting the beer and mash at the brewery, and, in State v. Rixman, 162 Mo. 1, it was held by our Supreme Court that the inspector was authorized to go to the brewery and to take-samples of malt and beer in the vats in the process of fermentation and from these make his analysis and that he was not restricted to analysis or inspection of the finished product. By the terms of sections three and seven of the act the burden and duty of inspection are cast on the producer of the beer and the-State inspector — the obligation is on the brewer to cause his products to be inspected before he can lawfully sell them in this State and the duty of the inspector is to inspect the product and if he finds i-t up to the required standard of purity then when the product is run off into packages to put his official certificate upon each of them.

The information does not allege that Broeder was a brewer or that he produced the beer contained in the package which he is alleged to have sold. It alleges that the package did not then and there “at the time and place of . sale” have upon it “the label and certificate of the State inspector of beer certifying that said beer had then and there been inspected.” This language imports that the beer had not been inspected at the time and place of sale and did not have upon it the State inspector’s certificate of the fact that it had -been then and there inspected and stamped with the official certificate. All of this might be true and it might also be true that the package did have the inspector’s certificate on it certifying that it had theretofore been inspected at some other time and place; in other words, the information does not negative, in direct terms, the fact that the package did not have upon it the official certificate of the State inspector. An indictment or information must bring the accused strictly and certainly within the terms of the offense as described in the statute and should leave nothing to conjecture or inference (State v. Latshaw, 63 Mo. App. 496) — it should state the exact offense with which the defendant is charged. State v. Clevenger, 20 Mo. App. 626.

II. The words “then and there,” at the conclusion of the charging clause in the information, can not be rejected as surplusage for the reason that they are descriptive of both time and place when and where it is alleged the beer should have been inspected and labeled, and go to the substance of the offense. State v. Gibson, 111 Mo. 92.

III. The contention that the information should negative the fact that the beer was sold for exportation, is without merit. The exception in the act in respect to beer for exportation is not contained in the section creating the offense, and is not descriptive of the offense, and is, therefore, a matter of defense. State v. Bockstruck, 136 Mo. 335; State v. Smith, 60 Mo. App. 283.

IV. We are not impressed with the argument of appellant’s counsel that ffiabel” and “certificate” as named in the act have a different signification and that it is a label and not a certificate mentioned in the act that the inspector is required to place on the packages of beer. Section seven requires the inspector, after he has made the inspection if he finds the product of standard purity, to “place upon the packages containing such beer or malt liquor his label, certifying that the same has been inspected and made from wholesome ingredients;” the label here spoken of is a certificate, and nothing more, certifying that an inspection has been made and to the quality of the contents of the package. Section la directs the State Treasurer to provide these labels and certificates and to countersign them and to deliver them to the inspector and to charge them to him as delivered and to credit his account with money paid in aS' collected by him from the brewers. But one certificate or label is provided for by the act. This certificate must, to conform to the requirements of the act, be countersigned by the State Treasurer and signed by the inspector when he places it on a package. The obvious intention of the Legislature in requiring this certificate to be placed on all packages of beer sold within this State is to prevent an evasion of the revenue features of the act. This certificate, in order to be evidence of the fact that the act has been complied with, must contain all the requirements of section la, that is, it must be countersigned by the State 'Treasurer and be signed by the State inspector.

Eor the error of the trial court in overruling defendant’s motion to quash the information, the judgment is reversed and the cause remanded with leave to the prosecuting attorney of Montgomery county to amend the information if he is so advised.