State v. Auberry

• Decision Date: 30 April 1842
• Citation: 7 Mo. 304
• Parties: THE STATE v. AUBERRY.
• Court: Missouri Supreme Court

7 Mo. 304

THE STATE

v.AUBERRY.

Supreme Court of Missouri.

April Term, 1842.

APPEAL FROM THE LINN CIRCUIT COURT.

NAPTON, J.

The grand jury of Linn county indicted the defendant, Auberry, for transgressing the law concerning Groceries and Dramshops. The indictment charged, “That defendant on, &c., at, &c., did exercise and carry on the business of a grocer without a license for that purpose continuing in force, and that without such license, that the said Auberry did sell spiritous liquors in quantities not less than one quart, to-wit, one gallon, &c., to divers persons, &c., against the form of the statute,” &c.

On the defendant's motion, this indictment was quashed. The attorney for the State excepted to the opinion of the court on this point, and saved his exceptions by bill.

The only objection suggested to the indictment is, that the pleader should have averred that the liquor sold “was not to be drank at the place of sale.” The first section of the act to regulate Groceries and Dramshops, acts of 1840-1, p. 81, provides that any person desirous of selling wine or spiritous liquors in a quantity not less than one quart, and not to be drank at the place of sale, shall take out a license to keep a grocery, and any person desirous of selling wine or spiritous liquors in a less quantity than one quart, or to be drank at the place of sale, shall take out a license to keep a dramshop.” It will be seen from this section, that the keeper of a grocery is authorized to sell liquors in quantities exceeding a quart, provided they are not to be drank at the place of sale, and a dramshop-keeper may sell in quantities under a quart, no matter where drank, or may sell in any quantity, provided the liquors are drank at his dramshop. The indictment charges that the defendant sold liquors in quantities not less than a quart, but does not state whether the liquor was drank at the place of sale or not. If the liquor was drank at the place of sale, though the quantity exceeded a quart, the defendant would have been guilty of selling liquors without a dramshop license. But as the indictment charges that defendant sold without a grocery license, it should have negatived the fact, that the liquors were to be drank at the place of sale.^(a) In other words, the indictment should have pursued the words of the statute. The judgment of the court was, in my opinion, correct and should be affirmed.

(a). Indictment under the act of 1841 should negative the existence of license generally, or allege the absence of both dramshop and inn-keepers' license--State v. Brown, 8 Mo. R. 210; Neales v. State, 10 Mo. R. 498, where it

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