State v. Handler
| Decision Date | 17 November 1903 |
| Parties | THE STATE v. BONE HANDLER, alias JOEL SMITH, Appellant |
| Court | Missouri Supreme Court |
Appeal from Atchison Circuit Court. -- Hon. Gallatin Craig, Judge.
Affirmed.
L. D Ramsay, T. M. Bailey and T. J. Porter for appellant.
(1) The negative averment about a license or other authority to give away must be made, although proof thereof is matter of defense to be established by the defendant. Even under local option, one kind of license under certain circumstances is authority for giving away, and the negative averment must be made. Kelley's Criminal Law, sec. 913; 31 Mo. 197; 19 Mo 380; Ex parte Swan, 96 Mo. 44; State v. Williams, 38 Mo.App. 37; State v. Kaufman, 45 Mo.App. 656; State v. Bevens, 52 Mo. 130. (2) The offense charged in the information is purely statutory, and as to such offense it is said: "There must be an evil intent though the statute is silent on the subject." 1 Bishop's Criminal Law (6 Ed.), sec. 345; State v. Cunningham, 154 Mo 178.
Edward C. Crow, Attorney-General, and Bruce Barnett for the State.
(1) We are unable to comprehend upon what appellant bases his contention that the criminal intent necessary to a conviction is wanting in this case. The defendant intended to do what he did do, namely, gave a drink of intoxicating liquor to another, which act was a violation of the statute in force in that county at the time. (2) No evil intent is necessary in this nature of offense. (3) (a) It is unnecessary that the information should have alleged that defendant had no license at the time he gave away the liquor. It is sufficient for the State to allege and prove that the defendant committed the act prohibited by the statute, and if the defendant comes within one of the exceptions to the application of the law, it is for him so to establish by way of defense, and not a matter necessary to be pleaded in advance. State v. Quinn, 94 Mo.App. 67; affirmed, 170 Mo. 176. (b) In prosecutions of violations of the dramshop law, even if it were necessary for the information or indictment to allege that the sale was made without license, yet in cases like the one at bar, it would not be necessary to allege that the defendant was no exception to the general rule. State v. O'Gorman, 68 Mo. 179; State v. Bockstruck, 136 Mo. 335; State v. Smith, 60 Mo.App. 283; State v. Broeder, 90 Mo.App. 156.
This is a prosecution by information for selling and giving away intoxicating liquors in Atchison county, after the local option law went into effect in said county, to-wit, May 10, 1902.
I. The appeal is in this court because the defendant assailed the constitutionality of the local option law, approved April 5, 1887. Contemporaneous with this appeal, the defendant sued out a writ of habeas corpus to test the constitutionality of the local option law. [Laws 1887, p. 179; secs. 3027 to 3035, R. S. 1899, inclusive.]
On the hearing of that application the constitutionality of said act was again affirmed on the authority of the numerous cases cited in the opinion, following State ex rel. Maggard v. Pond, 93 Mo. 606, 6 S.W. 469.
Inasmuch as that decision arose out of the identical facts involved in this prosecution, it must be ruled that the local option law is constitutional for the reasons assigned in Ex parte Bone Handler, 176 Mo. 383, 75 S.W. 920.
II. On the trial the State abandoned the charge of selling liquor and elected to prosecute only for giving away intoxicating liquors by defendant to one Charles Smith.
It was admitted that the local option law was in effect in Atchison county and had been since May 10, 1902.
The evidence shows that the defendant, in June, 1902, at a hotel in the town of Phelps in Atchison county, solicited one Charles Smith for an order for whiskey from the St. Joseph Supply Company, which defendant was representing as agent and salesman; that defendant had with him a case of samples of whiskey in bottles and gave Smith several drinks in a small whiskey glass, and that Smith accepted and drank the same; that there were about two teaspoonfuls of liquor to each drink; that these drinks were given to Smith as samples for the purpose of testing the quality of his various brands and securing an order. One drink was handed by the defendant to Smith and the others were taken by Smith himself from the defendant at defendant's suggestion.
The State introduced but one witness, namely, Charles Smith, who testified that he met the defendant in June, at a hotel in Phelps, in Atchison county; that defendant solicited from him an order for whiskey and gave him to drink samples of several of his brands, handing him in a glass about two teaspoonfuls of one brand and the witness himself taking drinks of other kinds, the defendant having told him to sample the whiskey.
The witness gave defendant an order for one-half gallon which the defendant accepted and the whiskey was sent to him by express, c. o. d., and he received it and paid $ 1.65 therefor to the agent of the express company.
The defendant, who took the stand in his own behalf, testified to practically the same state of facts; that he had been soliciting orders for whiskey in Atchison county and giving quantities to parties to test as samples; that at the hotel in Phelps in Atchison county, he gave Charles Smith about two teaspoonfuls in a whiskey glass and took his order for a half gallon; that Smith offered to pay him at the time, but he had refused the money, saying that he was taking the order for the St. Joseph Supply Company, of St....
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