State v. Owen
| Citation | 15 Mo. 506 |
| Parties | THE STATE v. OWEN. |
| Decision Date | 31 January 1852 |
| Court | Missouri Supreme Court |
BALLOU, for Plaintiff. The indictment does not charge the offense with certainty and precision, nor does it contain a complete description of such facts and circumstances as will constitute an offense under our statute, so that the court may know what judgment is to be pronounced upon conviction; nor does the indictment allege a plain, brief and certain motive of any offense punishable by law; nor is the offense, if any, set forth in the language of any statute. 1 Chitty's Cr. L. 227, 228, 229, 281, 282, 283; State v. Martin, 5 Mo. R. 361. The head-note to the case of The State v. Brown, 8 Mo. R. 210, is repudiated by the court in Austin v. The State, 10 Mo. R. 595, 596; see also 5 Mo. R. 357, 360.
GARDENHIRE, Attorney-General, for The State. 1. The indictment charges the absence of a license generally, and is sufficient. State v. Brown, 8 Mo. R. 210; Neales v. The State, 10 Mo. R. 498. 2. The indictment, with the highest degree of certainty known to pleading, directly and pointedly negatives a lawful selling, under all circumstances. Certainty to a certain intent in general is what is required in indictments; but, according to Lord Coke (Coke's Lit. 303) there is still a higher degree of certainty--certainty to a certain intent in every particular, which obtains in the case of estoppel, and in pleas not favored in law, such as the plea of alien enemy, in which it must be stated, not only that the plaintiff is an alien but that he came to England without letters of safe conduct from the King. 1 Chit. Pl. 268-9.
George W, Owen was indicted by the grand jury at the September term, 1850, of the Circuit Court within and for the county of Laclede, for selling intoxicating liquor in a less quantity than one quart without license. The defendant appeared at the March term, 1851, of said Circuit Court and moved the court to quash the indictment. This motion was overruled. He then plead guilty; the court assessed his fine to twenty dollars and rendered judgment therefor. The defendant then moved the court in arrest of the judgment, which motion was overruled, excepted to, and bill of exceptions filed. The defendant prayed an appeal to the Supreme Court, which was allowed him, and he brings the case now here for the consideration of this court.
The question involves the sufficiency of the indictment. The indictment charges that “George W. Owen, late of the county of Laclede, on, &c., at, &c., with force and arms did sell to a person to the jurors unknown intoxicating liquor in a less quantity than a quart, to-wit: one pint of whisky at and for the price and sum of five cents, without having a dramshop license, or tavern license, or grocer's license, or merchant's license, or any other kind of license, continuing in force during any of that time authorizing him so to sell, to-wit: on the day and year aforesaid, at the county aforesaid, contrary,” &c. Is it an offense by our laws for any person to sell intoxicating liquor in a less quantity than one quart without a license authorizing such sale? If it is then this indictment is good.
The 1st section of the act concerning Inns and Taverns, Digest 1845, declares that “hereafter no person within this State shall, without a tavern license, continuing in force, directly or indirectly sell, barter or deliver, or knowingly permit to be sold, bartered or delivered, for or on his or her account, any wine or spiritous liquors by less quantity than one quart,” &c.
The 1st section of the act concerning Groceries and Dramshops, Digest 1845, declares “that no person shall directly or indirectly, sell intoxicating liquors without taking out a license as a grocer or dramshop-keeper.”
By this last act, a grocer, being licensed, is permitted to...
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