State v. Moore

• Decision Date: 29 June 1891
• Citation: 107 Mo. 78,16 S.W. 937
• Parties: STATE v. MOORE.
• Court: Missouri Supreme Court

16 S.W. 937

107 Mo. 78

STATE v. MOORE.

Supreme Court of Missouri.

June 29, 1891.

LOCAL OPTION — VIOLATION — INFORMATION.

1. The local option law (Rev. St. Mo. 1889, c. 56, art. 2) is constitutional. Following State v. Pond, 93 Mo. 617, 6 S. W. Rep. 469, and Ex parte Swann, 96 Mo. 44, 9 S. W. Rep. 10.

2. An information for selling liquor contrary to the local option law need not negative sales under the druggists' law, which is an exception to the general application of the local option law.

SHERWOOD, C. J., dissenting.

In banc. Appeal from circuit court, Mercer county; G. D. BURGESS, Judge.

E. M. Harber, for appellant. Atty. Gen. Wood, for the State.

MACFARLANE, J.

Defendant was prosecuted in the circuit court of Mercer county, by information containing six counts, for selling intoxicating liquor in said county in violation of what is known as the "local option law," being now article 2, c. 56, Rev. St. 1889, was convicted on the first and sixth counts of the information, and a fine of $600 imposed, from which he appealed to this court, a constitutional question being involved. It is admitted upon the record that the local option law had been adopted and was in force in the county at the time the offenses charged were committed, if the law itself was constitutional. It is insisted, however, that the law is invalid, and has no force or effect, for the reason that it is repugnant to and in violation of the constitution of the state. The first and sixth counts of the information, after setting out fully the proceedings under which the law was adopted, charged that defendant, at said county, in the state of Missouri, "did unlawfully sell to one John Burr, and divers other persons then and there being to this informant unknown, intoxicating liquor in less quantities than one gallon, to-wit, * * * one-half pint of alcohol, and one pint of certain other kind of intoxicating liquor, composed of alcohol mixed with other liquids and substances, of which the kind and name are unknown to this informant, without taking out or having a license as a dram-shop keeper, or other license or legal authority to sell the same." The offense was charged in the first count to have been committed on the 1st day of February, 1888, and in the sixth count on the 18th day of February, 1888.

1. Defendant on this appeal asks a reconsideration of the former rulings of this court which declare the constitutionality of the local option law. No reason has been suggested, and none can be seen by us, for receding from the conclusion reached in the cases of State v. Pond, 93 Mo. 617, 6 S. W. Rep. 469, and Ex parte Swann, 96 Mo. 44, 9 S. W. Rep. 10. These cases were considered with great care, and the conclusion reached therein meets with our continued approval, and we reaffirm the constitutionality of said law.

2. The evidence shows that the local option law was in force in said county from and after the 6th day of October, 1887. The fact also stands undisputed that, after the adoption of the law, and before the filing of the information, defendant sold to John Burr and a number of other persons alcohol in quantities of one pint or less. This is admitted by defendant on the trial, but he undertakes to justify his...