State v. Back

• Decision Date: 17 February 1903
• Citation: 72 S.W. 466,99 Mo.App. 34
• Parties: STATE OF MISSOURI, Respondent, v. ELI BACK, Appellant
• Court: Missouri Court of Appeals

72 S.W. 466

99 Mo.App. 34

STATE OF MISSOURI, Respondent, v. ELI BACK, Appellant

Court of Appeals of Missouri, St. Louis

February 17, 1903

Appeal from Pemiscot Circuit Court.--Hon. H. C. Riley, Judge.

AFFIRMED.

Judgment affirmed.

J. P Tribble for appellant.

(1) Section 2748, Revised Statutes 1899, giving justices of the peace jurisdiction in misdemeanors, was passed in 1879, while section 3006 was passed in 1891. It radically changed the mode of procedure in cases arising under the act relating to dramshops, and will prevail over the former statute by necessary implication. "An affirmative enactment of a new rule implies a negative of whatever is not included or is different; and if, by the language used, the thing is limited to be done in a particular form or manner, it includes a negative that it shall not be done otherwise." Ex parte Joffee, 46 Mo.App. 360. (2) Where two statutes prescribe different modes of doing the same thing, the subsequent statute will prevail. Webb v. Midway Lumber Co., 68 Mo.App. 546. (3) The statute fixes the minimum legal sale of one not a dramshop-keeper, druggist or merchant, at three gallons (R. S. 1899, sec. 3004). If he is a druggist merely he can not sell less than four gallons (R. S. 1899, sec 3047). If a merchant he can not sell in less quantities than five gallons (R. S. 1899, sec. 8563). (4) The indictment did not state the proper quantity to bring it under the provisions of the druggist law, and was bad for the reason. State v. Greenhagen, 36 Mo.App. 24; State v Ford, 47 Mo.App. 601; State v. Stephens, 62 Mo.App. 232; State v. Fanning, 38 Mo. 409; State v. Baskett, 52 Mo.App. 389. An indictment for selling as a druggist should state the name of the person to whom the sale was made, in order that defendant may be advised sufficiently to produce a prescription, if he has one, covering the alleged illegal sale. State v. Harris, 47 Mo.App. 558; State v. Baskett, 52 Mo.App. 389.

L. L. Collins for respondent.

(1) The justice of the peace had jurisdiction to try and determine this case. R. S. 1899, sec. 2748. (2) The defendant should not have been indicted for selling liquor as a druggist, or a pharmacist, for the reason he was neither, as is shown by the evidence. Therefore, he was properly indicted for selling liquor without having a license as a dramshop-keeper. State v. Goff, 66 Mo.App. 491; State v. Workman, 75 Mo.App. 454.

REYBURN, J. Bland, P. J., and Goode, J., concur.

OPINION

REYBURN, J.

--Appellant was prosecuted upon an information by the prosecuting attorney of Pemiscot county, filed before a justice of the peace in Hayti township, Pemiscot county, charging him with unlawfully selling intoxicating liquors in less quantities than three gallons, to-wit, one gill of whiskey, on the 13th day of April, 1900, in the county of Pemiscot, without taking out or having a license as a dramshop-keeper, or any other legal authority to sell the same. At the setting of the case the justice of the peace certified the cause to the circuit court, holding that he had no jurisdiction as such justice to try it; and the circuit court ordered the case sent back to the justice, and ordered him to proceed with the trial, which resulted in the conviction of the defendant, who then appealed to the circuit court of Pemiscot county. In the circuit court defendant moved to quash the information, which the court overruled, and a jury being waived the trial was had before the court. In the circuit court the testimony tended to show that the defendant was a clerk for Back &amp Co., a firm composed of J. W. Back and C. A. Wells, and there was offered in evidence a merchant's license to the firm, a certificate of the State Board of Pharmacy issued to J. W. Back, a prescription issued by Dr. C. A. Wells, and a diploma to the latter as a physician. The sale of whiskey by the drink was admitted, but the testimony was conflicting whether the prescription was presented at the time of the sale. At the conclusion of the trial, the judge before whom the case was tried, found the defendant guilty, and imposed a fine of $ 40. Motions for new trial and in arrest were duly filed and overruled, and exceptions to the ruling of the court upon these motions were duly saved by defendant, but the record fails to set forth the saving of any exception on behalf of the defendant to bring any ruling of the lower court, excepting the action of the court upon the motions...