State v. McAdoo

• Decision Date: 31 October 1883
• Parties: THE STATE v. MCADOO, Appellant.
• Court: Missouri Supreme Court

80 Mo. 216

THE STATE

v.MCADOO, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Caldwell Circuit Court.--HON. E. J. BROADDUS, Judge.

REVERSED.

Crosby Johnson for appellant.

D. H. McIntyre, Attorney General, for the State.

PHILIPS, C.

At the June term, 1879, the defendant was indicted for selling liquor as a druggist, and for permitting the same to be drunk on his premises. The indictment is as follows: “The grand jurors, etc., present that one James McAdoo, late of the county aforesaid, on or about the 10th day of June, 1879, at and within Caldwell county, being then and there a dealer in drugs and medicines, then and there unlawfully did sell to one L. B. Clevenger, and divers other persons, to these jurors unknown, intoxicating liquors in a certain quantity less than one gallon, to-wit: one gill of whisky for five cents, one gill of brandy for five cents, one gill of wine for five cents, one gill of gin for five cents, without taking out a license as a dramshop keeper, and without having any license or legal authority to authorize him to so do, and did then and there unlawfully and willfully allow the said intoxicating liquors to be drunk upon the premises where it was sold, against the peace and dignity of the State.”

To this indictment the defendant demurred for the reason that the indictment does not state facts sufficient to constitute an offense, because it does not aver that the liquor was not sold for medicinal purposes. The demurrer being overruled, he filed a motion to quash for the same reason, with the additional ground that the indictment is multifarious. This the court also overruled.

At the trial the State introduced said Clevenger as a witness, who testified: “About the 10th day of June, 1879, I bought a half pint of whisky from the defendant at his store in Hamilton. Defendant was a druggist. I told him I wanted it for medical purposes. I was sick at the time and my physician had prescribed whisky and rock candy. I so told defendant; drank some of the whisky on defendant's premises; got liquors there more than once; may have drunk some at other times on the premises. Cross-examined. Defendant did not give me any permission to drink on his premises; I did not ask his consent; went into the back room to drink; do not know that he knew I was drinking any there. He told me that I must not drink on the place, that it was contrary to law, and that he could not suffer it. I used the liquor as a medicine.”

Defendant testified as follows: “I remember selling witness some liquor about the 10th day of June, 1879. He told me he was sick and wanted it for medicine. I did not know that he was going to drink it on the premises; spoke of the law prohibiting its being drunk there, and said that I could not allow its being drunk there; don't know that any of it was used there; did not see Clevenger drink any of it. He may have drunk some of it, but if he did so it was without my knowledge or consent.” This was all the evidence.

Defendant asked declarations of law as follows, all of which the court refused:

1. If the court finds from the evidence that the witness Clevenger, at the time he got the liquor of the defendant, represented that he was unwell and that he wanted the liquor for medical purposes, and that his physician had prescribed the liquor for his ailment, and defendant sold the liquor under said representations and for said purposes, the court cannot convict the defendant of having unlawfully sold the liquor.

2. Although the defendant may have sold the witness Clevenger liquor, which said witness drank on defendant's premises; yet unless the court finds that it was sold for the purpose of being drunk upon the premises, or unless it finds that the defendant gave his consent to its being drunk on the premises, it will find for defendant.

3. Even if the liquor sold by defendant to the witness was drunk on defendant's premises in defendant's presence and with his knowledge, yet if the court finds that defendant remonstrated against its being drunk on his premises, the court will find for defendant, unless the...