State v. Brown
| Decision Date | 31 July 1843 |
| Citation | 8 Mo. 210 |
| Parties | THE STATE v. BROWN. THE STATE v. SCHLICK. THE STATE v. HANS. |
| Court | Missouri Supreme Court |
S. M. BAY, Attorney-General, for the State. 1. The indictments charge the offenses in the words of the statute, and are therefore good. The State v. Comfort, 5 Mo. R. 357; The State v. Martin, ibid. 361; The State v. Mitchell, 6 Mo. R. 147 wherein it is said, “it has often been decided, that if the offense in the indictment charged be described in the words of the statute, it is sufficient.”
2. In indictments founded on statutory offenses, it is a general rule that all the circumstances which constitute the definition of the offense must be stated, but it is not necessary to state in the indictment that the defendant does not come within an exception in the statute, or to negative the provisoes contained therein. 1 Chit. Crim. L. 281, 283. 3. The 33rd section of the act of March 18, 1835, regulating Inns and Taverns, was repealed by the 50th section of the act of February 13, 1839, relating to Groceries and Dramshops; and all the provisions of the first-named act, relating to the dealing in wines and spiritous liquors, were virtually repealed by the act of February 16, 1841, to regulate Groceries and Dramshops; for the provisions of this act are inconsistent with those sections of the first-named act which relate to the dealing in wines and spiritous liquors. The act of February 16, 1841, expressly declares, that “no person shall, directly or indirectly, sell, &c., without having a dramshop license continuing in force.”
PRIMM and TAYLOR, for Defendants. The criminal court did not err in arresting the judgment. 1. Because the indictments charge the defendants in error with selling without a dramshop license, when the same should have charged the act of selling to have been done without license generally; for the defendants in error might well have sold under a tavern license, and yet had no dramshop license. 2. The indictment must exclude the idea of authority to do a malum prohibitum.
These three cases are alike, in every particular. The defendants were indicted under the act of February 16, 1841, entitled, “An act to regulate Groceries and Dramshops.” The indictment charged that defendant, on, &c., at, & c., “unlawfully did sell spiritous liquors at his stand in the county of St. Louis, in less quantity than one quart, to be drank at the place of sale, without then and there having a dramshop license continuing in force, contrary,” &c. The defendants were severally convicted and fined twenty dollars each, but, upon motion, judgment was arrested.
If the act of March 18, 1835, to regulate Inns and Taverns, was in force at the finding of this indictment, it is clear, that the indictment was fatally defective, and the judgment was properly arrested. For although it is in general true, that to lay an offense in the express words of a statute is sufficient, yet, if the act of 1835 authorized tavern-keepers, to vend liquors in quantities less than one quart, to be drank at the tavern stand, and the act concerning Dramshops gave the same privilege to dramshop-keepers, it would be necessary, in an indictment for the offense of selling liquors in small quantities, to negative the existence both of an inn-keeper's license and a dramshop license. Either license would justify the selling, and if the charge be as it was in this indictment, that the selling took place without one or the other license, a conviction and judgment under such an indictment would be no bar to a subsequent indictment for the same offense.
The offender, after having paid the penalties of the law, for selling liquor in small quantities without a dramshop license, might again be...
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