State v. Barnett

• Court: Missouri Court of Appeals
• Writing for the Court: Bland
• Citation: State v. Barnett, 110 Mo. App. 592, 85 S.W. 613 (Mo. App. 1905)
• Decision Date: 21 February 1905
• Parties: STATE v. BARNETT.

85 S.W. 613

110 Mo. App. 592

STATE v. BARNETT.

St. Louis Court of Appeals. Missouri.

February 21, 1905.

INTOXICATING LIQUORS — DRAMSHOP KEEPERS — ILLEGAL SALES — INFORMATION — EVIDENCE — EXISTENCE OF LICENSE — ORDERS OF COUNTY COURT — BEST EVIDENCE — NOTICE TO PRODUCE.

1. Under Rev. St. 1899, § 2990, defining a dramshop keeper as a person licensed to sell intoxicating liquors, an information charging a "dramshop keeper" with a violation of section 3011 of the statutes, prohibiting any person having a license as a dramshop keeper from keeping

his dramshop open on Sunday, is sufficient to support a conviction, although it does not state that defendant is a "licensed" dramshop keeper.

2. Where an applicant for a liquor license was a party to proceedings in the county court which resulted in an order granting him a license, he was concluded by the order, and it was original evidence against him in a subsequent prosecution for an illegal sale of liquor by him as a dramshop keeper.

3. An order of the county court showing the granting of a liquor license, but failing to contain the license or to show that it had been actually issued and delivered, is not evidence of the issual of the license.

4. A list of liquor licenses made by the clerk of the county court, in the form of a memorandum to which the licensees were not parties, is not original evidence against a particular licensee in an action against him for an illegal sale as a dramshop keeper.

5. In a prosecution for an illegal sale of liquor by a dramshop keeper, the license itself is the best evidence that defendant is a dramshop keeper, and, although defendant cannot be compelled to produce his license, he should be notified so to do, in order to lay a foundation for the introduction of secondary evidence.

Appeal from Circuit Court, Pemiscott County; Henry C. Riley, Judge.

J. Ira Barnett was convicted of an illegal sale of liquor, and appeals. Reversed.

C. G. Shepard, for appellant. L. L. Collins, for the State.

BLAND, P. J.

1. Defendant was convicted and fined in the Pemiscott circuit court for selling intoxicating liquors on the first day of the week, commonly called Sunday, in violation of section 3011 of the dramshop act, Rev. St. 1899. After taking the usual preliminary steps, defendant appealed to this court.

The information charged the defendant with having made the sale as a dramshop keeper. For the reason the term "dramshop keeper" is not preceded by the word "licensed," it is contended by the appellant that the information does not state facts sufficient to constitute an offense under section 3011, supra. By section 2990 of the dramshop act, a dramshop keeper is defined to be "a person permitted by law, being licensed according to the provisions of this chapter [chapter 22] to sell intoxicating liquors in any quantity, either at retail or in the original package, not exceeding ten gallons." Section 3011, for a violation of which defendant was convicted, prohibits any person having a license as a dramshop keeper to keep open such dramshop "on the first day of the week, commonly called Sunday." The information does not follow the language of the statute, in that it omits to state that defendant was a licensed dramshop keeper. It would have been better pleading if the information had followed...