State v. Quinn

• Decision Date: 15 April 1902
• Citation: 170 Mo. 176,67 S.W. 974,94 Mo. App. 59
• Parties: STATE v. QUINN.
• Court: Missouri Court of Appeals

67 S.W. 974

170 Mo. 176;

94 Mo. A. 59

STATE v. QUINN.

Court of Appeals of St. Louis, Missouri.

April 15, 1902.

INTOXICATING LIQUORS — PERSONS AMENABLE TO DRAMSHOP ACT — MERCHANTS — PROSECUTION.

A person, though having a merchant's license authorizing him to sell liquors in quantities of not less than five gallons, may, if he sells a less quantity, and has no license as a dramshop keeper, be convicted of a violation of the dramshop act (Rev. St. 1899, § 2991), which provides that no person shall sell intoxicating liquors in less quantities than three gallons, either at retail or in the original package, without taking out a license as a dramshop keeper, and need not necessarily be prosecuted for violating the merchants' act.

Appeal from circuit court, Butler county; James L. Fort, Judge.

William Quinn was convicted of violating the dramshop act, and appeals. Affirmed, and case certified to supreme court.

R. H. Stanley, for appellant. D. W. Hill, for the State.

BLAND, P. J.

On May 1, 1901, the prosecuting attorney of Butler county filed in the circuit clerk's office of said county four informations against the defendant, charging him with four separate violations of the dramshop act. At the June, 1901, term of the Butler circuit court, the issues were made up on the four informations, and by agreement they were all submitted to the court, sitting as a jury, at one time, and were all heard at the same time. The evidence on the part of the state tends to show that defendant sold one-half pint of whisky at different times and to the several persons named in the several informations. On cross-examination it was developed that the prosecuting witnesses, who bought the whisky, were furnished money by the citizens with which to buy it under an understanding that the purchases were to be made with the view to furnishing evidence for these prosecutions. On the part of the defendant it was shown that he was the son of L. F. Quinn, and that L. F. Quinn and son had a state and county license authorizing them to vend goods, wares, and merchandise for the period of one year beginning on November 15, 1900. The defendant asked the following declaration of law: "The court declares the law to be that, if the defendant was a merchant, and had a merchant's license, that he is not guilty of a violation of the dramshop law, as charged in this information, provided said merchant's license covered the time of the offense as alleged in the counts of this information," which the court refused to give. The court, sitting as a jury, found the defendant guilty on all four of the informations, assessed his punishment at a fine of $200 on each one, and rendered four separate judgments for the fines so assessed. Timely motions for new trial and in arrest of judgment were filed by the defendant, which the court overruled, and defendant appealed.

1. As in the Patton and Lucas Cases (decided at this term) 67 S. W. 970, 971, defendant, on the hearing of his motion in arrest of the judgment, offered to prove by parol evidence that the informations were not verified on the dates they purported to be, but at a later date, and after the warrants had been issued and served on the defendant. This evidence was correctly rejected by the court. State v. Patton (No. 8,511) 67 S. W. 970.

2. As in the Lucas Case, defendant contends that the court should have dismissed the cases on the showing that the prosecuting witnesses were furnished money to buy whisky of the defendant for the purpose of making cases against him. This contention was ruled adversely to the defendant in State v. Lucas (No. 8,505) 67 S. W. 971, and need not be further noticed here.

3. The undisputed evidence is that the defendant had a merchant's license authorizing him to vend goods, wares, and merchandise, including intoxicating liquors in quantities not less than five gallons, when the several sales charged in the informations were made by him; and it is contended that he should have been proceeded against for violations of the law in respect to the sale of intoxicating liquors by merchants, and that he was not amenable to the dramshop act. In State v. Alexander, 73 Mo. App. 605, it was held by this court that a merchant having a license was not amenable to the dramshop act. The same ruling was made in Town of Knox City v. Whiteaker, 87 Mo. App. 468. In the Alexander Case the court contented itself by a reference to the section of the statute prohibiting merchants from selling intoxicating liquors in less quantities than five gallons. In the Whiteaker Case the court took the position that the legislature had singled out druggists and merchants as a particular class, and conferred upon them the privilege of selling intoxicating liquors under special statutory provisions, and on this assumption held that they could only violate the law under which they were specially licensed; citing State v. Witty, 74 Mo. App. 550; State v. Williams, 69 Mo. App. 284; State v. Piper, 41 Mo. App. 160, — cases in which the act pertaining to the sale of liquors by druggists was discussed, and which support the class idea. Beginning with State v. Piper, supra, there is an unbroken line of decisions by both this court and the Kansas City court of appeals to the effect that the design of the druggists' and pharmacists' act is to cover all the ground in relation to the sale of liquor by druggists and pharmacists, without reference to any other statute, and that a licensed druggist or pharmacist can only be prosecuted on account of an unlawful sale of liquor under the drug act. We have never been favorably impressed with the logic of the opinion in the Piper Case, and have not been converted to its soundness by the additional reasoning in some of the cases that have followed it, in which it is said that one of the reasons why a licensed druggist and pharmacist should not be prosecuted under...