State v. Fanning
| Decision Date | 31 July 1866 |
| Citation | 38 Mo. 359 |
| Parties | STATE OF MISSOURI, Defendant in Error, v. WILLIAM T. FANNING, Plaintiff in Error. |
| Court | Missouri Supreme Court |
Error to Dade Circuit Court.
Hendrick & Bray, and T. A. Sherwood, for plaintiff in error.
The indictment is insufficient. It fails to show that there was a sale to any one; it fails to show that the quantity of liquor alleged to have been sold was within the limit prohibited by law. The law prohibiting sales of liquor in a less quantity than one gallon had been repealed at the time of the alleged offence--Neales v. State, 10 Mo. 498; State v. Hays, 36 Mo. 80; State v. Mitchell, 25 Mo. 420; Act of 14th March, 1859.
Attorney General, for respondent.
This is an indictment for a misdemeanor, and it is only necessary that the indictment should be certain to a common intent. The offence consists in the act of selling, and therefore the designation of the person purchasing or the price paid is no way material--15 Mo. 430; 24 Mo. 363; Id. 532; 17 Ills. 158-60, and authorities cited.
This indictment is for a violation of § 1, ch. 57, R. C. 1855, p. 683, and sufficiently charges an offence under the same. The fact that the accused may have been privileged to sell the liquor by virtue of some other statute is not necessary to be negatived in an indictment under this section-- 10 Mo. 703. The well settled rule is, that it is only necessary to charge the offence in the words of the act, or substantially so, and to show such acts as are necessary to constitute the offence, negativing only such exceptions as are included in the clause creating the offence. All other justifications or excuses must be pleaded and shown by the accuser. The provision of the statute above cited, and upon which this indictment is framed, was not repealed or affected by the act of the 14th of March, 1859--Sess. Acts 1858-9, p. 56, § 22. And even if it was, the indictment charges sufficient to constitute an offence under our statute (24 Mo. 364), in which case it was also held by the court, Judge Scott delivering the opinion--“This court will not reverse a judgment of the Circuit Court refusing to quash an indictment, as it is discretionary with the court whether it will quash, or leave the party to his demurrer.”
In this case, the indictment alleged that the defendant “did unlawfully and directly sell intoxicating liquors in less quantities than one gallon, to-wit, one glass of whiskey, without having a dram-shop keeper's license, or any other legal authority to sell the same.” The defendant moved to quash the indictment for the reasons that it did not charge him with selling liquors in a less quantity than one quart, nor aver to whom or for what price they were sold, nor state that they were sold to persons unknown; and his motion being overruled, he pleaded guilty, and filed his motion in arrest of judgment, for the same reasons.
As to the first objection, we are referred to the act to tax and license merchants (Laws of 1858-9, p. 56, § 22), which provides that a merchant's license shall not authorize the sale of liquors in less quantities than one quart. This act has no application to the case here, which appears to be founded on the act to regulate dram-shops, and the indictment charges a selling without a dram-shop keeper's license, or any other legal authority. That the defendant was a merchant and licensed to sell liquors in quantities above one quart, might be good matter of defense when the facts should be proved; but the indictment sufficiently negatives any lawful authority to sell.
As to the price and the person, the weight of authority seems to be in...
To continue reading
Request your trial
-
State v. Bennett
... ... indictments for selling intoxicating drinks without license ... have been held sufficient though they did not allege to whom ... or at what place the sales were made ( State v ... Spain (1860), 29 Mo. 415; State v. Jaques ... (1878), 68 Mo. 260; State v. Fanning (1866), 38 Mo ... 359), or what kind of liquor was sold ( State v ... Rogers (1867), 39 Mo. 431), or the price thereof ( ... State v. Ladd (1852), 15 Mo. 430). Elsewhere, also, ... we find cases that somewhat enlighten this investigation ... An ... indictment was held ... ...
-
The State v. Wingfield
... ... unlawful sale of liquor it is sufficient to charge a sale ... simply without stating to whom sold, or that such person was ... to the grand jurors unknown. State v. Ladd, 15 Mo ... 430; State v. Miller, 24 Mo. 532; State v ... Fanning, 38 Mo. 359; State v. Rogers, 39 Mo ... 432; State v. Jaques, 68 Mo. 260; State v ... Martin, 108 Mo. 117, 18 S.W. 1005; State v ... Melton, 38 Mo. 368 ... This ... precise question was passed upon by the St. Louis court of ... appeals in the case of State v. Houts, ... ...
-
State v. Stock
... ... 160; ... State v. Williams, 69 Mo.App. 284; State v ... Rafter, 62 Mo.App. 101. (2) It is not necessary to state ... the name of the person to whom the liquor was sold, nor the ... place where it was sold. State v. Ladd, 15 Mo. 430; ... State v. Miller, 24 Mo. 532; State v ... Fanning, 38 Mo. 359; State v. Rogers, 39 Mo ... 431; State v. Jaques, 68 Mo. 260; State v ... Elam, 21 Mo.App. 290; State v. Gibson, 61 ... Mo.App. 368. (3) Persons may be jointly indicted for selling ... liquor without license, or for any offense which may be ... committed by several. In such ... ...
-
State v. Schleuter
...26 Mo. 170; State v. Hornbeck, 15 Mo. 479; State v. Wishon, 15 Mo. 504; State v. Cox, 29 Mo. 475; State v. Fanning, 38 Mo. 409; State v. Fanning, 38 Mo. 359. ELLISON, J. The defendant was indicted, tried and convicted for violating section 3011, Revised Statutes 1899, reading as follows: "A......