State v. Leonard
| Decision Date | 18 December 1916 |
| Citation | 190 S.W. 957,195 Mo.App. 283 |
| Parties | STATE OF MISSOURI, Respondent, v. WALTER LEONARD, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Bates Circuit Court.--Hon. C. A. Calvird, Judge.
AFFIRMED.
Judgment affirmed.
E. B Silvers for appellant.
D. C Chastain for respondent.
Defendant was prosecuted under an information which, after alleging that the city of Butler in Bates county, Missouri, was a city of more than 2500 inhabitants and the Local Option Law was in force therein, charged that "Walter Leonard, in said city of Butler aforesaid, did then and there unlawfully keep for, store for and deliver to one John Doe, who(se) true name is unknown, intoxicating liquor, to-wit, twenty-four pint(s) of whiskey without then and there having any authority so to do and against the peace and dignity of the State."
A jury was waived and the case was tried by the court. The trial resulted in the court finding the defendant guilty of keeping liquor for another, and his punishment fixed at imprisonment in the county jail for six months. Defendant has appealed.
There is no question but that the evidence clearly shows that the defendant, a negro, knowingly kept intoxicating liquor for another person. The defendant offered no testimony, and it is not claimed that the evidence was not sufficient to show keeping for another.
The defense is that in a prosecution for the offense of keeping liquor for another, the particular person for whom it is kept is as essential an element of the offense as is the ownership of property in the case of larceny, and that, therefore, the information is bad since a fictitious name of the person for whom the liquor is kept is not a sufficient description of the offense. Point is also made that in this case the proof showed that the liquor was kept for one, John Medley, and that there is a fatal variance on this account.
In prosecutions for the sale of intoxicating liquor it is well settled that the name of the one to whom the liquor is sold is immaterial, the person to whom it is sold not being an element of the offense. [State v. Curtwright, 134 Mo.App. 588, 114 S.W. 1146; State v. Haney, 151 Mo.App. 251, 132 S.W. 55; State v. Spain, 29 Mo. 415; State v. Jaques, 68 Mo. 260; State v. Ladd, 15 Mo. 430.] It would seem that, in reason, the same rule would apply in a prosecution for keeping liquor for another. The word sale, vi ex termini, includes a person to whom the sale is made, as much so as the phrase "keep for another" includes such other. As noted in the Ladd case, however, the offense of larceny violates an individual right of another, namely, the owner or holder of the property, and hence the name of such other must be stated in order to completely state the offense. But the sale of liquor to another and the keeping of it for another are complete in themselves without regard to the particular person to whom the sale is made or for whom it is kept, as their rights are not violated nor involved, and thus a charge of either act is complete without naming the other person implied or included in the terms.
However if the name of the one for whom it is kept were necessary to be stated, the information states it was kept for "John Doe whose true name is unknown." The evidence is that, at the time the information was filed, it was not known to be prosecutor whom the liquor was kept for, but at the trial it developed that the man for whom it was kept was John...
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