State v. Suess

Decision Date25 January 1886
Citation20 Mo.App. 423
CourtMissouri Court of Appeals
PartiesSTATE OF MISSOURI, Respondent, v. GEORGE SUESS, Appellant.

APPEAL from Carroll Circuit Court, HON. JAMES M. DAVIS, Judge.

Affirmed.

Statement of case by the court.

The defendant was indicted for selling, in 1884, intoxicating liquors in less quantity than one gallon, to-wit, one-half pint of whiskey, “without taking out or having a license as a dramshop keeper, or any other authority to sell the same.”

The case was tried by the court sitting as a jury.

It is recited in the bill of exceptions as follows:

“It is agreed that Shelton, Suess, the defendant, and others, testified as follows: ‘That defendant sold the liquor, at the time and place mentioned in the indictment; that he sold it for medical purposes, on the written prescription of a regularly licensed and practicing physician; that the defendant had, at the time, a merchant's license; that he was running what is commonly called a drug store, with a full line of drugs and medicines; that defendant was not a licensed and registered druggist under the laws of this state regulating the licensing of druggists and pharmacists.”

This seems to have been the whole evidence in the case.

The defendant asked the court to declare the law to be:

“If the court find from the evidence that the defendant, at the time charged in the indictment, was a dealer in drugs and medicines, at his store, in said county of Carroll, and constantly kept on hand at his store aforesaid, a general stock of drugs and medicines, and had, at the time, a merchant's license, in due form, and that he sold the liquor at the time and place described in the indictment, for medicinal purposes, on the written prescription of a regularly licensed and practicing physician, in good faith, then the defendant is not guilty. Although the court may further find from the evidence that the defendant was not at that time a licensed pharmacist or druggist under the laws of this state regulating the sales of drugs and medicines. And, also, may find that he did not keep, or have in his store, a licensed pharmacist or druggist.”

This declaration of law the court refused to give, and found the defendant guilty.

HENRY WOLLMAN, for the appellant.

I. Under the law in force in 1879 (section 5474, Revised Statutes), any dealer in drugs, having merchant's license, had the right to sell liquor when prescribed by a physician. In 1881 it was made unlawful for any one to conduct a pharmacy, etc., unless registered, but provided that any person not a pharmacist, might conduct a drug store, if he constantly kept in his employment a registered pharmacist (Laws of 1881, p. 130), but prohibited them from selling or giving away liquors as a beverage. In 1883 (Laws of 1883, p. 88), sales were prohibited except on written prescription of a physician.

II. Defendant is indicted for selling liquor without a dramshop license. If he has committed any offence, it is in conducting the business of a druggist without being registered as such--an entirely distinct and separate offence. The dramshop law was not intended to regulate anything but the sale or use of liquors as a beverage. Defendant indicted under it, was tried for carrying on the business of a druggist without being registered. This it was not competent for the state to do.

III. The only offence, under the law, is selling intoxicating liquors” without license. It was necessary for the state to show this. The state, under its own evidence, failed to prove a case of selling “intoxicating liquor,” or even the nature or kind of “liq...

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