State v. Jaeger

• Decision Date: 31 October 1876
• Citation: 63 Mo. 403
• Parties: STATE OF MISSOURI, Respondent, v. JOHN JAEGER, Appellant.
• Court: Missouri Supreme Court

63 Mo. 403

STATE OF MISSOURI, Respondent,

v.JOHN JAEGER, Appellant.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Newton Circuit Court.

Thrasher & Vickery, with Collier & Muench, for Appellant.

I. The indictment should have been quashed, because it does not negative the existence of authority in defendant to sell as a “dram-shop keeper.” (State vs. Brown, 8 Mo. 210; Neales vs. State, 10 Mo. 498; State vs. Haden, 15 Mo. 447; State vs. Hornbeck, Id. 478; State vs. Owen, Id. 506.)

II. Under section 29, chap. 48, Wagn. Stat., in force when this indictment was found, it was no offense on the part of defendant to permit wine, sold on the premises where made by him, to be drunk there.

Hockaday, Att'y Gen'l, for Respondent.

I. It was not necessary to allege in the indictment that the defendant was not a “dram-shop keeper.” The averment that he had no “wine and beer house license,” was sufficient. (State vs. Cruise, 16 Mo. 391.)

II. The act of March 25th, 1872 (Wagn. Stat. §§ 28-33, inclusive of p. 554), did not repeal, invalidate, or in any manner affect section 25, p. 554, of the dram shop act. The two were intended and can be operated together. The former was simply intended to establish a different class of licenses, but not to authorize the manufacturer of wine to open a dram shop on his premises, by suffering it to be drunk at the place of sale, without first procuring a “wine license.”

III. The amendment of the 25th section of the “dram shop act,” in March, 1873, was equivalent to passing the law anew, and by its own provisions shows the legislative intent to include wine as fully as any other class of intoxicating liquors.

IV. The vendor of wines of his own growth and manufacture, must have a license, in order to enjoy the privilege to the full extent given by law to license “wine and beer house keepers.”

The privilege to sell wine on the premises of the manufacturer does not carry with it the privilege to permit it to be drunk thereon. If this were the case, the keepers of licensed wine and beer houses would not be protected. (State vs. Wyl, 55 Mo. 67.)

SHERWOOD, Judge, delivered the opinion of the court.

In this case the indictment was as follows:

“The grand jurors of the State of Missouri impaneled and sworn, and charged to inquire within and for the body of the county of Newton upon their oaths present: that John Jaeger, on the 31st day of July, 1873, at the county of Newton, in the State of Missouri, being then and there a maker of intoxicating liquors, to-wit: fermented wine, did then and there sell to one Allen Williams a bottle of said intoxicating liquors, and did then and there unlawfully and willfully permit and suffer the said Allen Williams to drink the said intoxicating liquor at the place of sale, the same being a place under the control of him, the said John Jaeger, he, the said John Jaeger, not having then and there a wine and beer house license, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Missouri.

N. H. DALE,

Pros. Att'y,” etc.

The defendant appeared and moved to quash this indictment for the following reasons:

1st. Because said indictment does not charge that any offense has been committed against the laws of the State of Missouri.

2d. Because said indictment does not allege that the defendant was not a dram-shop keeper, or that he had not lawful authority to sell intoxicating liquors, to be drank in the premises where the same were sold.

3d. Because said defendant, as a maker of fermented wine, had the right to sell said wine in any quantity, and for any purpose, at the place where the same was made.

This motion having been overruled by the court, the defendant pleaded “not guilty,” and at the next term the case was tried by the court, without a jury, upon the following agreed statement of facts:

“In this case it is agreed that the defendant, jointly with his brother, Herman Jaeger, is a wine and grape grower in the county of Newton, in the State of Missouri; that said Jaeger, on the 13th day of July, 1873, and long before and ever since that time, jointly owned and lived upon and cultivated eighty acres of land in said Newton county; that upon said eighty acres of land there was at the time before mentioned a dwelling house, where defendant and his brother Herman resided, a wine cellar, wine manufactory and vineyard; that said Jaeger, at their said place of residence, had for some years before the 31st day of July, 1873, manufactured and produced wine from the grapes grown by them on said premises; that on or about said 31st day of July, 1873, defendant sold to one Allen Williams a bottle of said wine so grown and made by said Jaeger on said premises, where said wine was grown and made, which wine had been before that time fermented, and permitted said Allen Williams to drink a portion or the whole of said bottle of wine on said premises, where said wine was made and sold, said premises at the time being under the control of said defendant; that said defendant had at the time last mentioned no wine or beer house license.”

At the close of the case defendant asked the court to grant three declarations of law, to the effect generally, that under the statute it was no offense for a wine-grower, who has sold on his own premises wine of his own production, to permit the same to be drank at the place of sale. All of these declarations were refused by the court, the defendant found guilty, and fined $40 and costs.

The only question needing solution is that presented by these declarations.

To attain, in this regard, a correct conclusion, necessitates an examination into the history of legislation in this State respecting production of wine.

The first act relating thereto was that approved March 26th, 1868, which so amended section 26, chapter 98 of the General Statutes, that it read as follows:

“This chapter shall not be so construed as to affect the right of a merchant to sell intoxicating liquors according to the provisions of the law regulating the licensing and taxation of merchants, [nor as affecting the right of wine-growers to sell wine of their own production by the bottle of ordinary size.]” The amendment, thus made, I have placed within brackets.

This section underwent a further amendment, by the act approved February 25, 1869, and in lieu of the words, “by the bottle of ordinary size,” were substituted, “in any quantity on their own premises.”

The act last cited was followed by that approved March 25, 1872, entitled “An act to amend chapter 98 of the revised statutes of 1865, being chapter 48 of Wagner's Statutes, concerning dram-shop keepers and their licenses, and to promote temperance and encourage the production of native wines in this State.”

It is only requisite to quote the first and second sections of this act:

Sec. 1. “There is hereby created a special class of licenses, to be known as wine and beer licenses. A wine and beer house keeper is a person permitted by law, being licensed as such, to sell beer, cider and native wines, the latter being the growth and manufacture of this State, in quantities not exceeding ten gallons.”

Sec. 2. “No person not having a license as dram-shop keeper shall, directly or indirectly, sell beer, cider and native wines, the latter the...