State v. Clevenger
| Decision Date | 03 May 1887 |
| Citation | 25 Mo.App. 655 |
| Parties | STATE OF MISSOURI, Respondent, v. N. T. CLEVENGER, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from the Lawrence County Circuit Court, A. L. THOMAS, Judge.
Reversed and remanded.
JOHN T TEEL, for the appellant: The first count in the indictment and the one upon which the defendant was tried, is bad because it does not conclude, " " " " against the peace and dignity of the state." The State v. Lopez, 19 Mo. 254; The State v. Pemberton, 30 Mo. 376; Const. Mo. art. 6, sect. 38.
W. B. SKINNER, for the respondent.
The defendant was indicted at the February term, 1885, of the Lawrence circuit court. The indictment contained two counts. The first charged the defendant with selling intoxicating liquor, as a druggist, without a prescription from a regularly registered and practicing physician, and the second with selling intoxicating liquor, without license, in less quantity than one gallon, without license as a dramshop keeper. The second count in the indictment concluded, " against the peace and dignity of the state; " but the first count failed so to conclude.
At the August term, 1885, as the record shows, the state dismissed the first count in the indictment, and thereafter, at the February term, 1886, the defendant was arraigned and tried on the remaining count of the indictment, found guilty, and sentenced to pay a fine of one hundred dollars.
There was some evidence adduced tending to support the charges of the second count, which, according to the recitals of the record, was the only remaining count of the indictment, in this, that a sale of whiskey by the defendant in less quantity than one gallon was proved. The burden of proving that he had a dramshop license was upon the defendant. The State v. Lipscomb, 52 Mo. 32; The State v. Edwards, 60 Mo. 490; The State v. McNeary, 14 Mo.App. 410. But no instructions were given to the jury applicatory to such evidence. The instructions of the court seem to assume that what was, in fact, tried, was the charge made in the first count, which, according to the recitals of the record, had been dismissed at a previous term. While this recital is probably a clerical error, we are bound by the record, and can not go outside of it, and must reverse the judgment for error in the instructions.
We may add, however, that the result would necessarily be the same if the record had recited that the...
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State v. O'Kelley
... ... Sec. 5781, R. S. 1909, ... provides that a druggist may sell intoxicating liquor on the ... prescription of a regularly registered and practicing ... physician. The prescription must reasonably and substantially ... comply with the statute. State v. Clevenger, 25 ... Mo.App. 655; State v. Hammock, 93 Mo.App. 521. (2) ... Druggists may sell intoxicating liquors on written ... prescriptions issued by practicing physicians even in ... counties where the Local Option Law has been adopted ... State v. Bevans, 52 Mo.App. 130; Ex parte Swann, 96 ... ...
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State v. Ulrich
...ruled is no doubt that each count ordinarily charges separate offenses and should therefore be a complete indictment of itself. State v. Clevenger, 25 Mo.App. 655; State Lopez, 19 Mo. 254; State v. Pemberton, 30 Mo. 376; State v. Schloss, 93 Mo. 361, 6 S.W. 244. But in Wisconsin, Texas and ......