State v. Swadley

• Decision Date: 31 January 1852
• Citation: 15 Mo. 515
• Parties: STATE v. SWADLEY.
• Court: Missouri Supreme Court

15 Mo. 515

STATE

v.SWADLEY.

Supreme Court of Missouri.

January Term, 1852.

HENDRICK, for Plaintiff.

GARDENHIRE, Attorney-General, for The State.

RYLAND, J.

Mark Swadley was indicted by the grand jury of Greene county at the December term of the Circuit Conrt in the year 1850, for selling liquor to a slave without having the consent in writing of the owner, overseer, &c., of said slave. The defendant appeared at the April term, 1851, and moved the court to quash the indictment, which motion was overruled. He thereupon plead guilty. The court assessed his fine to twenty dollars and entered judgment therefor. The defendant afterwards moved in arrest of judgment, upon the grounds of defectiveness and insufficiency of the indictment, this motion was overruled, excepted to, bill of exceptions filed, and the case is now brought before us by writ of error. The indictment charges that the defendant “did then and there unlawfully sell to a negro man, a slave, whose name is unknown to the grand jurors, he, the said slave, then and there being the property of one Burrel Tisdel, one pint of whisky of the value of ten cents, without then and there having a written permit from the owner, overseer of said slave or any one having legal authority over said slave, authorizing said sale, contrary, &c.

The statute concerning Slaves, § 33, Digest 1845, declares that “any person who shall buy of, sell to, or receive from any slave any commodity whatsoever without the consent in writing of the master, owner or overseer of such slave first had and obtained,” &c.

The statute concerning Groceries and Dramshops, § 7, Digest 1845, declares that “no grocer or dramshop-keeper shall directly or indirectly sell any intoxicating liquor or drink of any kind to any slave without permission in writing from the master, owner or overseer of such slave.”

The defendant objects to the indictment in this case because he cannot tell under which of these statutes it is found. There can be no pretense that it is founded on the 7th section of the act concerning Groceries and Dramshops. It is nowhere averred that the defendant was a grocer or a dramshop-keeper. If the indictment can be supported at all, it must be under the 33rd section of the act concerning Slaves. The indictment is drawn very carelessly; but yet I am inclined to think it is good. The averment that the defendant sold a pint of whisky to the negro man, a slave, the property of Burrel Tisdel without the written permit of the owner,...