State v. Stock
| Decision Date | 05 May 1902 |
| Citation | 68 S.W. 579,95 Mo.App. 65 |
| Parties | STATE OF MISSOURI, Respondent, v. G. STOCK et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Cass Circuit Court.--Hon. Wm. L. Jarrott, Judge.
AFFIRMED.
Judgment affirmed.
G. M Summers and W. D. Summers for appellant.
(1) The indictment is defective; it charges no crime. (2) If they had separate licenses or were running separate stores, then they could not be jointly charged. The statement of facts says they made "joint and separate sales" and we can't tell which the jury convicted them of. R. S. 1899 sec. 8540; State v. Martin, 5 Mo. 362; State v Brown, 8 Mo. 211; State v. Cox, 32 Mo. 566; State v. Richeson, 45 Mo. 575; State v. Ford, 47 Mo.App. 601; State v. West, 34 Mo. 424. (3) Where an indictment is founded on a statute creating an offense unknown to the common law, it must set forth all the constituent facts and circumstances necessary to bring the accused fully within the terms and provisions of the same. State v. Alexander, 73 Mo.App. 607; State v. Arter, 65 Mo. 653; State v. Hesseltine, 130 Mo. 468; State v. Rafter, 62 Mo.App. 101; State v. Piper, 41 Mo.App. 160; State v. Harris, 34 Mo. 347; Bishop on Statutory Crimes, secs. 418, 421, 422. (4) Two persons can not be indicted jointly and severally and convicted for committing the same offense. Vaughn v. State, 4 Mo. 530; State v. Daubert, 42 Mo. 242; State v. Bridges, 24 Mo. 353-8; State v. Green, 24 Mo.App. 227; State v. Smith, 37 Mo. 58. (5) Where the sale was not in law nor in fact joint, the indictment should not be so. Bishop on Statutory Crimes, sec. 1045; State v. Edwards, 60 Mo. 490. (6) The court erred in not instructing on all points of law arising in the case. R. S. 1899, sec. 2627, amended by Ses. Acts 1901, p. 140; State v. Banks, 73 Mo. 592; State v. Branstetter, 65 Mo. 155; State v. Stonum, 62 Mo. 596; State v. Taylor, 118 Mo. 153; State v. Palmer, 88 Mo. 568.
Edward O. Jackson and Jerry Culbertson for respondents.
(1) The indictment is sufficient, and is correctly drawn to cover the offense charged. Sec. 8563, R. S. 1899; State v. Ford, 47 Mo.App. 601; State v. Alexander, 73 Mo.App. 606; State v. Piper, 41 Mo.App. 160; State v. Williams, 69 Mo.App. 284; State v. Rafter, 62 Mo.App. 101. (2) It is not necessary to state the name of the person to whom the liquor was sold, nor the place where it was sold. State v. Ladd, 15 Mo. 430; State v. Miller, 24 Mo. 532; State v. Fanning, 38 Mo. 359; State v. Rogers, 39 Mo. 431; State v. Jaques, 68 Mo. 260; State v. Elam, 21 Mo.App. 290; State v. Gibson, 61 Mo.App. 368. (3) Persons may be jointly indicted for selling liquor without license, or for any offense which may be committed by several. In such indictment it is not necessary to allege that such offenders were partners, there being no partnership in crime. Where several are jointly indicted, the punishment of each shall be separately assessed. Rex v. Benfield, 2 Burr. 980; State v. Gay, 10 Mo. 441; State v. Edwards, 60 Mo. 490; State v. Presbury, 13 Mo. 241; State v. Murphy, 47 Mo. 274, overruling Vaughn v. State, 4 Mo. 530.
--The indictment alleged that defendants then and there etc.
I. The sufficiency of the said indictment is questioned by the defendants on the ground that it is nowhere therein charged that they dealt in goods, wares and merchandise. The indictment alleges that the defendants were merchants. Every person or co-partnership of persons who shall deal in selling goods, wares and merchandise, etc., is declared to be a merchant (sec. 8540, R. S.). A merchant, under other sections of the statute, is required to give bond and obtain a license to carry on his business. Section 8563 declares that no such license shall authorize any merchant to sell any vinous, fermented or spiritous liquors in any quantity less than five gallons, for any purpose whatever. The allegation, therefore, that the defendants were merchants, was a sufficient allegation of the fact that they dealt in--or were dealers in goods, wares and merchandise.
As the statutory prohibition (sec. 8563, R. S. 1899) is directed against merchants as such, and the minimum quantity they may sell being five gallons, with a special penalty distinct from that attached to other offenders, the indictment should indicate on its face that the party charged is a merchant as defined by statute. State v. Runyan, 26 Mo. 167; State v. Ryan, 30 Mo.App. 159. But if the indictment did not, on its face, sufficiently allege that the defendants were merchants, still as this fact was well proved at the trial, under State v. Shafer, 82 Mo.App. 58, the defective allegation, if such it was, was thereby aided.
II. The defendants further assail the indictment on the ground that it does not therein allege whether the defendants were licensed as individuals or as "a co-partnership of persons." It seems to us that no such an allegation is required in order to charge an offense against the statute (section 8563). If the defendants were carrying on the business of merchants under their license, and while so doing they made a sale of vinous, fermented or spiritous liquor in a less quantity than five gallons, it is difficult to see why they did not offend against the statute whether their license was to them as partners or jointly to them without specifying their relation inter se. It is for the abuse of the privilege conferred by the license that the statute intends to punish.
It is admitted that the defendants made the joint sale as alleged in the indictment, so that the evidence was ample to justify the verdict of the jury.
But it is contended that the evidence went further and showed that each of the defendants made sales when the other was away, and that such evidence did not, of itself, authorize a conviction under the indictment. It is a sufficient answer to this contention to say that if evidence of separate sales was introduced without objections, it is now too late to object to it even if it was improper.
Even if evidence of separate sales was...
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