State v. Jaques

• Decision Date: 31 October 1878
• Citation: 68 Mo. 260
• Parties: THE STATE Appellant, v. JAQUES.
• Court: Missouri Supreme Court

68 Mo. 260

THE STATE Appellant,

v.JAQUES.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Bollinger Circuit Court.--HON. J. B. ROBINSON. Judge.

This was indictment charging the defendant with having unlawfully and directly sold intoxicating liquors in less quantities than one gallon, to-wit: one pint of whisky, without having taken out a license as a dramshop keeper, and without having any legal authority to make such sale, against the provision of the statute, &c. To this indictment a demurrer was interposed, alleging as grounds of objection that it was founded on section 1, page 46, Acts 1874, and did not negative the fact that the liquor was sold for medicinal purposes upon the written prescription or certificate of a regular, practicing physician, and that it did not give the name of the person to whom it was sold, nor state the place where it was sold. The demurrer was sustained and judgment was rendered for the defendant, from which the State appealed.

J. L. Smith, Attorney-General, and J. H. Willson for the State.

Madison R. Smith for respondent.

1. SELLING LIQUOR WITHOUT LICENSE.

HENRY, J.

The objections to the indictment, that it does not allege to whom or at what place the liquor was sold, are met by the cases of the State v. Spain, 29 Mo. 415; State v. Ladd, 15 Mo. 432; State v. Fanning, 38 Mo. 359; State v. Melton, 38 Mo. 369, in which it was held that those allegations are not indispensable to a good indictment. The State v. Neales, 10 Mo. 500, and Austin v. The State, 10 Mo. 591, to the contrary, have long since been overruled.

2. _____: druggist: criminal pleading

The only remaining question is, whether the indictment is defective in failing to negative the existence of those facts, which, by the act of March 26th, 1874, authorized a druggist to sell intoxicating liquors in less quantities than one gallon. The second section of the General Statutes, (Wag. Stat., § 2, p. 549,) in relation to dramshops, prohibits every person from selling intoxicating liquors in any quantity less than one gallon, without taking out a license as a dramshop keeper. The act of 1874 makes exceptions to the general law. The indictment is drawn under the second section of the act in relation to dramshops, and not under the act of 1874. How was the court to know that defendant was a druggist? He was not indicted as such, and if he sold the liquor as a druggist, under circumstances which authorized the sale, that was a matter of defense. It was expressly averred that he had not taken out a license as a dramshop keeper, and had no legal authority whatever to sell. This has been repeatedly held a sufficient negation of any...