State v. Pittman

Decision Date31 October 1882
PartiesTHE STATE, Appellant, v. PITTMAN.
CourtMissouri Supreme Court

Appeal from Bollinger Circuit Court.--HON. J. H. NICHOLSON, Judge.

REVERSED.

The indictment charged that defendant, being a druggist, did unlawfully “sell and give away” intoxicating liquors in less quantities than one gallon, without having a dramshop keeper's license. It was founded on section 1, page 166, Session Acts 1879, which makes it an offense to “sell or give away,” etc. Defendant demurred to the indictment, as charging two distinct offenses, and being, therefore, bad for duplicity. The demurrer was sustained and final judgment entered for the defendant. The State appealed.

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

Nalle & Edwards for respondent.

SHERWOOD, C. J.

The indictment is well enough, and should have been thus held. The gist of the offense with which the defendant was charged, was the unlawful traffic and dealing in spirituous liquors. A violation of the statute under which the indictment is drawn may occur in two ways: First, by a druggist having no license as a dramshop keeper, selling intoxicating liquor in less quantity than one gallon. Second, by such druggist, being unlicensed as aforesaid, giving away a similar quantity of intoxicating liquor. The statute is in the disjunctive. In such cases, it is allowable to use the word and instead of the disjunctive or. And it is held bad pleading to employ the disjunctive in such cases, and fatal to do so. This is the view taken in State v. Fitzsimmons, 30 Mo. 236, and in the elementary works. State v. Fancher, 71 Mo. 460, and cases cited. Therefore, judgment reversed and cause remanded.

All concur.

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42 cases
  • State v. Rosegrant, 34553.
    • United States
    • United States State Supreme Court of Missouri
    • April 23, 1936
    ...Fancher, 71 Mo. 760; State v. Gentry, 55 S.W. (2d) 941; State v. McGee, 83 S.W. (2d) 98; State v. Peak, 68 S.W. (2d) 701; State v. Pittman, 76 Mo. 56; State v. Shelby, 64 S.W. (2d) 269; State v. Spano, 6 S.W. (2d) 849; State v. Thomas, 240 S.W. 858; State v. Troup, 22 S.W. (2d) 789. (2) Ins......
  • State v. Spano
    • United States
    • United States State Supreme Court of Missouri
    • May 25, 1928
    ...as above stated, viz: St. Louis v. Theater Co., 202 Mo. 690, 698, 100 S.W. 627; State v. Miller, 188 Mo. 370, 377, 87 S.W. 484; State v. Pittman, 76 Mo. 56; State v. Bregard, 76 Mo. 322. The brief, argument and submission of the case was limited to the contention that the indictment was dup......
  • State v. Currier
    • United States
    • United States State Supreme Court of Missouri
    • February 12, 1910
    ...one count, and the count will be sustained by proof of one of the offenses charged. [State v. Harroun, 199 Mo. 519, 98 S.W. 467; State v. Pittman, 76 Mo. 56; State Bregard, 76 Mo. 322; State v. Flint, supra.] Consequently, the indictment is not open to objection on the ground of misjoinder ......
  • State v. Clawson
    • United States
    • Court of Appeal of Missouri (US)
    • March 27, 1888
    ...... any of the specifications are sufficiently charged in the. indictment. The indictment would not be bad even if it. charged several offences in the same count, if such offences. are the same, defined by the same section of the statute, and. punishable in the same manner. State v. Pittman, 76. Mo. 56; State v. Klein, 78 Mo. 627; State v. McAdoo, 80 Mo. 216. . .          The. decisions in this state hold that an indictment is. sufficient, though it does not follow the language of the. statute, if it uses substantially the words of the statute,. or words equivalent ......
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