State v. Ladd

• Decision Date: 31 January 1852
• Parties: STATE v. LADD.
• Court: Missouri Supreme Court

15 Mo. 430

STATE

v.LADD.

Supreme Court of Missouri.

January Term, 1852.

APPEAL FROM BUCHANAN CIRCUIT COURT

This was an indictment for selling liquor without license. The defendant demurred, which being overruled, he excepted. The cause was then submitted to a jury. The circuit attorney introduced one James Wood as a witness who testified that, in August or July of this year in the county of Buchanan he bought of defendant a drink of wine and paid for it, and also a drink of rum and paid him for it. He also testified that he was a witness before the grand jury at the term the indictment was found--testified in reference to such sales--that he was well acquainted with various members of the grand jury and they with him. The evidence here closed. The circuit attorney moved the court to instruct the jury: “That if they believed from the evidence that the defendant sold to any person wine or rum in a less quantity than one quart within twelve months before the finding of this indictment and in Buchanan county, they must convict.” To the giving of which instruction the defendant objected but the objection being overruled he excepted. The defendant then prayed the following instruction: “That if the evidence shows that the liquor was sold to the witness, James Wood, and he was known to the grand jury at the finding of the indictment, it is their duty to acquit on this indictment. Which instruction the court refused and the defendant excepted. The jury having returned a verdict of guilty, the defendant filed his motion for a new trial and also in arrest, which being severally overruled, he excepted.

VORIES & S. L. LEONARD, for Appellant. 1. The indictment is bad, and the demurrer ought to have been sustained, because it does not specify any price for which the liquor was sold. Neales v. State, 10 Mo. R. 498, defendant is not guilty unless there was a price and one cannot be intended where none is expressed; 1 Chitty's Crim. Law, 172. 2. The court erred in overruling defendant's instruction. 1 Chitty's Crim. Law, 213; Arch. Crim. Pl. 35; Hays v. State, 13 Mo. R. 246. The indictment was for selling to a person unknown. The evidence went to show that he was tried for selling liquor to a person known, and the sufficiency of that evidence should have been left to the jury.

GARDENHIRE, Attorney-General, for The State. 1. It was not

necessary for the indictment to charge the name of the person to whom the liquor was sold. 2 Taunt. R. 333; State v. Ames, 1 Mo. R. 525; Page v. State, 6 Mo. R. 205-6; Dove's case, 2 Virg. Ca. 26; People v. Adams, 17 Wend. 477; Halstead v. Commonwealth, 5 Leigh's R. 724; State v. Munger, 15 Vt. R. 295; the phrase “to divers persons to the jurors aforesaid unknown” in the indictment was, therefore, surplusage, and it was not necessary to prove it. 5 Leigh's R. 724. 2. It was not necessary to set out the price. 6 Mo. R. 205-6. The offense consists in the act of selling. 17 Wend. 477. The indictment charges that appellant “did sell.” A sale includes a price as well as a purchaser. Both are alike elements of it. If it is not necessary to charge one, it cannot be of the other. The proof did not show that the person to whom the sale was made was known to the grand jury. If it had there would have been no variauce. 5 Leigh's R. 724; Hays v. State, 13 Mo. R. 246.

RYLAND, J.

The points relied upon by counsel for the defendant below to reverse the judgment in this case, are the insufficiency of the indictment and the refusal of the court to give the instruction prayed for by the defendant to the jury. I will first consider the indictment. It charges, that the defendant sold intoxicating liquors in a quantity less than a quart, to-wit: one pint of whisky, one pint of gin, &c., to divers persons to the jurors unknown, without any license, &c. The only objection made to it rests on the omission to state the price for which the liquor was sold. There is no price mentioned in the indictment at and for which the liquor was sold. The defendant relies upon the case of Neales v. The State, 10 Mo. R. 500. In this case it was said by the court, “that the charge is that the defendant, did then and there unlawfully sell intoxicating liquor in a quantity less than a quart. To whom sold, the description of the liquor sold and the price for which it was sold are entirely omitted in the indictment; and yet this would appear necessary to be stated, otherwise how can the court see that an offense has been committed or the defendant be apprized of the nature of the accusation against him and be able to prepare for his defense.” In answer to this, I remark that these objections were not made to the indictment in Neales' case, nor was the court called upon to notice the indictment in these particulars. Strictly, this point was not before the court in that case, and what was said in relation thereto, may be considered as obiter dicta. This court in the case of Page v. The State, 6 Mo. R. 205, upon an indictment for selling clocks without a license, declared that a sale must be alleged, but it was not necessary to allege to whom it was made nor the price given.

The offense is confined to the person selling, it does not injure or affect the rights of another person. The charge is complete, when it...