State v. Gallagher

• Decision Date: 02 December 1907
• Citation: 126 Mo. App. 729,106 S.W. 111
• Parties: STATE v. GALLAGHER.
• Court: Missouri Court of Appeals

106 S.W. 111

126 Mo. App. 729

STATE v. GALLAGHER.

Kansas City Court of Appeals. Missouri.

December 2, 1907.

1. INTOXICATING LIQUORS — SALE TO MINOR — CIVIL LIABILITY — STATUTES.

No one but a dramshop keeper defined to be a licensed retailer of liquors by Rev. St. 1899, § 2990 [Ann. St. 1906, p. 1714], is liable under section 3009, as amended by Laws 1905, p. 141 [Ann. St. 1906, p. 1724], providing that a dramshop keeper shall be civilly liable for a penalty for selling to a minor, and making such dramshop keeper also liable to prosecution for a misdemeanor therefor.

2. SAME — LIABILITY OF CLERKS.

In a prosecution for selling liquor to a minor without the consent of his parents, in violation of Rev. St. 1899, § 2179 [Ann. St. 1906, p. 1397], providing that "any person" who sells intoxicating liquor to a minor without the consent of the parents shall be guilty of a misdemeanor, etc., it was no defense that the seller was a mere bartender or clerk for a licensed dramshop keeper in whose shop the liquor was sold, and that the sale was made for the proprietor, and not for defendant.

Appeal from Circuit Court, Nodaway County; Wm. C. Ellison, Judge.

Dan Gallagher was convicted of selling intoxicating liquor to a minor without the consent of his parents, and he appeals. Affirmed.

J. C. Growney, for appellant. John M. Dawson, for the State.

ELLISON, J.

The defendant was indicated, tried, and convicted for selling intoxicating liquors to a minor without the consent of his parents. It is not disputed that the sale was made by defendant; but he claims that he was bartender or clerk for the dramshop keeper in whose shop the liquor was sold, and that he made the sale for the proprietor, and was not himself liable. In this view he offered to show that the proprietor of the dramshop for whom he clerked was a regularly licensed dramshop keeper. The court refused such evidence.

Since defendant's offer of proof was declined, we will, for the purpose of the appeal, assume it to be true. By section 3009 of the General Statutes of 1899, as amended in 1905 (page 141 [Ann. St. 1906, p. 1724]), a "dramshop keeper" — that is, a licensed retailer of liquors (section 2990, Rev. St. 1899 [Ann. St. 1906, p. 1714]) — is made civilly liable to a penalty for selling to a minor, and is also made liable to a prosecution for a misdemeanor, to be fined not less than $50 nor more than $200. Under that section, it has been held that no one but a dramshop keeper is liable....