State v. Moore

Citation16 S.W. 937,107 Mo. 78
PartiesThe State v. Dillard Moore, Appellant
Decision Date29 June 1891
CourtMissouri Supreme Court

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

IN BANC.

Macfarlane, J.

Defendant was prosecuted in the circuit court of Mercer county, by information containing six counts, for selling intoxicating liquor in said county in violation of what is known as the "local option law," being now article 2, chapter 56, Revised Statutes, 1889, was convicted on the first and sixth counts of the information, and a fine of $ 600 imposed, from which he appealed to this court, a constitutional question being involved. It is admitted upon the record that the local-option law had been adopted and was in force in the county at the time the offenses charged were committed, if the law itself was constitutional. It is insisted, however, that the law is invalid, and has no force or effect, for the reason that it is repugnant to, and in violation of, the constitution of the state.

The first and sixth counts of the information, after setting out fully the proceedings under which the law was adopted, charged that defendant, at said county, in the state of Missouri, "did unlawfully sell to one John Burr, and divers other persons then and there being to this informant unknown, intoxicating liquor in less quantities than one gallon, to-wit, * * * one-half pint of alcohol, and one pint of certain other kind of intoxicating liquor composed of alcohol mixed with other liquids and substances, of which the kind and name are unknown to this informant, without taking out or having a license as a dramshop keeper, or other license or legal authority to sell the same." The offense was charged in the first count to have been committed on the first day of February, 1888, and in the sixth count on the eighteenth day of February, 1888.

I. Defendant on this appeal asks a reconsideration of the former rulings of this court which declare the constitutionality of the local-option law. No reason has been suggested, and none can be seen by us, for receding from the conclusion reached in the cases of State ex rel. Maggard v. Pond, 93 Mo. 606, 6 S.W. 469, and Ex parte Swann, 96 Mo. 44, 9 S.W. 10. These cases were considered with great care, and the conclusion reached therein meets with our continued approval, and we reaffirm the constitutionality of said law.

II. The evidence shows that the local-option law was in force in said county from and after the sixth day of October 1887. The fact also stands undisputed that, after the adoption of the law and before the filing of the information, defendant sold to John Burr and a number of other persons alcohol in quantities of one pint or less. This is admitted by defendant on the trial, but he undertakes to justify his action on the ground that he was a licensed druggist, and, as such, sold the alcohol for medicinal, mechanical, scientific or art purposes. It is held in Ex parte Swann, supra, that section 4605 does not interfere in the least...

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