Neales v. State
| Decision Date | 31 March 1847 |
| Citation | 10 Mo. 498 |
| Parties | NEALES v. THE STATE. |
| Court | Missouri Supreme Court |
APPEAL FROM ST. LOUIS CRIMINAL COURT.
SIMMONS, for Appellant.
STRINGFELLOW, Attorney-General, for State.
Patrick Neales, at the September term, 1846, of the Criminal Court for St. Louis county, was indicted for unlawfully carrying on the trade and business of a dramshop-keeper, without having a license therefor continuing in force. To this charge, he pleaded not guilty; and neither party requiring a jury, the cause was submitted to the court, who found him guilty, and assessed a fine of $30 against him, and entered judgment therefor. The defendant then filed a motion in arrest of judgment, “because the indictment is double, uncertain, and otherwise defective and informal.” And the motion having been overruled, he excepted to the opinion of the court, and has brought the case here by writ of error. The only assignment of error is, that “the indictment is defective, for the reason that it sets out the capacity of the defendant, but does not allege that the act of selling was committed in that capacity.”
The indictment charges “that Patrick Neales, late of the county aforesaid, laborer, on the 10th day of September, in the year of our Lord one thousand, eight hundred and forty-six, at the county aforesaid, did unlawfully carry on the trade and business of a dramshop-keeper; and that the said Patrick Neales did then and there unlawfully sell intoxicating liquors in a quantity less than a quart, without then and there having any license whatever therefor continuing in force, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”
The argument to sustain the error assigned, is, that it is necessary to charge that the defendant sold as a dramshop-keeper, or, non constat, but he may have sold as a tavern-keeper, in which case he is not indictable at all. This argument is based upon a decision of this court, The State v. Brown, 8 Mo. R., 210, in which it is held that the negation should be broad enough to include all authority which the State, by law, can confer upon individuals to retail ardent spirits. And that where the statute grants the privilege of retailing in two capacities, it is necessary to allege that the defendant was not authorized to do the act in either. We see no good reason to depart from the principles of that opinion--on the contrary, upon a review, we are satisfied that they are correct.
There are other objections to the indictment, which, in our opinion, are insuperbable. The gravamen, as charged in the indictment, is not set forth with that particularity and certainty which is found in either the old or modern forms. The charge is that the...
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In re Application of Dawson
... ... (Syllabus ... by the court.) ... 1 ... Under the provisions of sec. 7 of art. 1 of the constitution ... of this state, the right of trial by jury is reserved to the ... citizens of the state as it existed and was permitted under ... the common law, and such right ... there cited; State v. Maine, 27 Conn. 281; State ... v. Lightfoot, 107 Ia. 351, 78 N.W. 41; State v ... Rea, 126 Ia. 65, 101 N.W. 507; Neales v. State, 10 Mo ... It is ... against public policy to allow one charged with a felony to ... waive a jury trial. (State v. Thompson, ... ...
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State v. Cottrill
...but before that statute was passed it was held, in a misdemeanor case, that the defendant would not be bound by such waiver. Neales v. State, 10 Mo. 498. It has also been held in Missouri that the clause of the constitution that "no person shall be held to answer for a capital or otherwise ......
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Commonwealth v. Hall
...the problem was not squarely before it, seemed to discountenance the idea of any waiver of a jury. In the early Missouri case of Neales v. State, 10 Mo. 498, the court apparently dismissed the question rather by saying: " It is exclusively the province of a jury to try the issue of not guil......
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Commonwealth v. Hall
...the problem was not squarely before it, seemed to discountenance the idea of any waiver of a jury. In the early Missouri case of Neales v. State, 10 Mo. 498, the court apparently dismissed the question rather summarily by saying: "It is exclusively the province of a jury to try the issue of......