16 S.W. 937 (Mo. 1891), State v. Moore

Citation:16 S.W. 937, 107 Mo. 78
Opinion Judge:Macfarlane, J.
Party Name:The State v. Dillard Moore, Appellant
Attorney:E. M. Harber for appellant. John M. Wood, Attorney-General, for the State.
Judge Panel:Macfarlane, J. Sherwood, C. J., dissents, and Barclay, J., absent.
Case Date:June 29, 1891
Court:Supreme Court of Missouri

Page 937

16 S.W. 937 (Mo. 1891)

107 Mo. 78

The State

v.

Dillard Moore, Appellant

Supreme Court of Missouri

June 29, 1891

Appeal from Mercer Circuit Court. -- Hon. G. D. Burgess, Judge.

Affirmed.

E. M. Harber for appellant.

(1) The case of State ex rel. v. Pond, 93 Mo. 606, should be overruled, and the local-option law held unconstitutional. (2) There was not sufficient testimony to convict defendant on the first and sixth counts of sales to John Burr. He always told defendant he wanted alcohol for medicine and he thought he did. (3) Defendant being a druggist could not be convicted under the information in this case. State v. Meek, 70 Mo. 355; State v. O'Brian, 74 Mo. 349; State v. Merchant, 25 Mo.App. 657; State v. Ryan, 30 Mo.App. 159; Ex parte Swann, 96 Mo. 44.

John M. Wood, Attorney-General, for the State.

(1) As to the constitutional questions raised in appellant's brief, the state submits the case on the authority of State ex rel. v. Pond, 93 Mo. 606, and Ex parte Swann, 96 Mo. 44. (2) The charge was a sale of intoxicating liquor in violation of the localoption law, and the evidence in support of that charge having shown a sale of alcohol or other intoxicating liquors of the kind charged, it devolved upon defendant to show legal authority to make the sale. The sale by defendant having been in violation of the local-option act, he must suffer the penalty of that act unless the sale was made by him under the protection of some other statute. To bring the sale made by defendant under the protection of section 4605, Revised Statutes, 1889 (local-option act) and the druggist act, it was necessary for him to show that he was a registered druggist or pharmacist, and that he in good faith sold wine for sacramental purposes, or that he sold pure alcohol in less quantities than one gallon on a written prescription, from some regular registered and practicing physician, stating the name of the person for whom the same was prescribed, and that the same was prescribed as a necessary remedy. Acts, 1883, sec. 2, p. 90; R. S. 1889, secs. 4621, 4605; State v. Suess, 20 Mo.App. 423; State v. Wright, 20 Mo.App. 412; State v. Baker, 36 Mo.App. 58; Ex parte Swann, 96 Mo. 44.

Macfarlane, J. Sherwood, C. J., dissents, and Barclay, J., absent.

OPINION

[107 Mo. 80] IN BANC.

Macfarlane, J.

Defendant was prosecuted in the circuit...

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