State v. Wills
| Decision Date | 03 April 1911 |
| Parties | STATE OF MISSOURI, Respondent, v. J. F. WILLS et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Newton Circuit Court.--Hon. F. C. Johnston, Judge.
Judgment reversed and cause remanded.
O. L Cravens for appellants.
(1) The information is defective because it fails to give the names of the persons to whom the alleged sales were made, and the court erred in not quashing it. State v. Martin, 108 Mo. 117. (2) The court committed prejudicial error in permitting Clanton and Bales to testify regarding the empty Peruvian bottles behind the chili stand and behind Tom White's building. State v. Seigenthaler, 121 Mo.App. 510; State v. Fierline, 19 Mo. 380; State v. Roberts, 33 Mo.App. 524; Driver v State, 85 S.W. 1056; Parish v. State, 89 S.W 830; Wilson v. State, 136 Ala. 114, 33 Southern 831; State v. Marshall, 2 Kan.App. 792, 44 P. 49; State v. Hughes, 3 Kan.App. 95, 45 P. 94; State v. Neild, 4 Kan.App. 626, 45 P. 623; State v. Reynolds, 5 Kan.App. 515, 47 P. 573; Ware v. State, 71 Miss. 204, 13 So. 936; Bailey v. State, 67 Miss. 333, 7 So. 348; Naul v. Macomb, 70 Miss. 699, 12 So. 903; King v. State, 66 Miss. 502, 6 So. 188; People v. Andrus, 74 A.D. 542, 77 N.Y. 780; State v. La Rose, 71 N.H. 435, 52 A. 943. (3) It was prejudicial error for the court to allow the state to prove by the justice of the peace Bales, on behalf of the state, that complaints had been made to him as an officer that defendants were violating the Local Option Law, and as to the rumors he had heard that negroes could go to defendants' drug store and get whiskey and carry it out to parties. Cobleigh v. McBride, 45 Iowa 116; Warner v. Brooks, 14 Gray (Mass.) 107; State v. Fisher, 35 Vt. 584. (4) The error complained of in instructions No. 3 to No. 10 is that each assume the liquors mentioned are intoxicating and that they contained alcohol. State v. Allen, 94 Mo.App. 508; State v. Dilihunty, 18 Mo. 331; State v. Harris, 209 Mo. 423; State v. Weeden, 133 Mo. 83; State v. Cooper, 71 Mo. 441; State v. Hecox, 83 Mo. 531; State v. Castor, 93 Mo. 242; State v. Taylor, 111 Mo. 538; State v. Bonner, 178 Mo. 424; State v. Vickers, 209 Mo. 12. (5) We submit that the jury should have been allowed to say whether the liquids were capable of being used as a beverage. State v. Lillard, 78 Mo. 136, 23 Cyc. 58.
Albert D. Bennett for respondent.
(1) Point 1 in appellant's brief attacks information because it fails to give names of persons to whom sales were made. It is not necessary. State v. Winfield, 115 Mo. 428. (2) The facts are clearly proven and without contradiction that the liquors sold contained alcohol and no rational mind could arrive at any other conclusion, save and except that they contained alcohol and were used as a beverage. And the rule as to assumptions permits instructions to assume the truth of a fact which is not controverted. State v. Moore, 101 Mo. 316; State v. Priest, 215 Mo. 1; State v. Burk, 131 S.W. 883; Dickson v. Railroad, 104 Mo. 491; Pope v. Railroad, 99 Mo. 400; Carnovshi v. Transit Co., 207 Mo. 263; Orcutt v. Building Co., 214 Mo. 53; State v. Henze, 45 Mo.App. 412; State v. Besheer, 69 Mo.App. 74; State v. Lemp, 16 Mo. 390; State v. Rucker, 93 Mo. 91; State v. Crab, 121 Mo. 564; State v. Pratt, 121 Mo. 571. (3) Term "intoxicating liquor" as used in the Local Option Law (Laws 1897, page 179) embraces any beverage containing alcohol in any quantity whatever, it not being necessary that the beverage contain any particular per cent of alcohol to make it an intoxicating liquor within the Act. State v. Burk, 131 S.W. 883; State v. Gamma, 129 S.W. 734; State v. Bales, 130 S.W. 111. (4) It is immaterial whether Peruvian Strengthening Elixir and Dr. Harter's Wild Cherry Bitters were sold in good faith as a medicine or not. Peruna, where it showed 27 per cent alcohol, is a violation of the law, although druggists selling same believed it to be a medicine. Clement v. Dwight, 121 N.Y.S. 788; State v. Wilson, 80 Mo. 303; State v. Lillard, 78 Mo. 136; State v. Wright, 20 Mo.App. 412; State v. Besheer, 69 Mo.App. 75; State v. Lemp, 16 Mo. 390, 23 Cyc. 58; State v. Steele, 92 S.W. 530; Bradshaw v. State, 89 S.W. 1051; State v. Searcy, 46 Mo.App. 432; State v. Bevans, 52 Mo.App. 132.
Prosecution for sale of liquor in violation of the Local Option Law within the city of Neosho. Defendants were convicted upon the first count in the information and have appealed.
The information contains eight counts all of which are in the same form, and the sufficiency of the information is assailed upon the ground that the names of the parties to whom the liquor is charged to have been sold are not given. It is conceded that ordinarily it is not necessary in charging a violation of the Dramshop Law or Local Option Law to give the name of the party to whom it is claimed the liquor was sold, but the evidence in this case shows that these defendants were druggists, and it is now contended that being druggists, the same rule would apply to them in a prosecution for sale of liquor in violation of the Local Option Law as would apply in case they were prosecuted under the druggists' law.
It was formerly held in this state that druggists and merchants were each in a class to themselves, and if either of these parties should sell liquor in violation of the law they could only be prosecuted under the particular statute applicable to the class to which they belong. [State v. Piper, 41 Mo.App. 160; State v. Williams, 69 Mo.App. 284; State v. Witty, 74 Mo.App. 550; State v. Steele, 84 Mo.App. 316, 318.] But these cases have been overruled. [State v. Quinn, 170 Mo. 176, 67 S.W. 974.] And since the decision in that case the rule now is in this state that the class idea as applied to druggists and merchants is no longer in vogue unless the prosecutor sees fit to prosecute under the sections applicable to those businesses. The prosecutor has the right to elect under which statute he will proceed. If he proceeds under the local option statute then it is no defense to a prosecution under that statute to show merely that the defendant is a merchant or druggist, but they stand as to that charge just as any other person, and to justify a sale the defendant must show that it was made in conformity to the merchant or drug law. This being true, it was not necessary to state in the information the name of the party to whom the liquor had been sold.
Error is also assigned in the giving and refusing of instructions, and in the admission of testimony.
In a general way the evidence disclosed the following state of facts: Defendants were druggists doing business as partners in the city of Neosho. Certain parties who were witnesses for the state bought whiskey at defendants' store, and also bought what was called Harter's Wild Cherry Bitters, Peruvian Strengthening Elixir, and Waukasha Cream Ale. There was evidence that the Waukasha Cream Ale was sold as a beverage and that some of the other liquor was bought without any statement as to whether it was being bought for medicine or not, and upon some of it, one witness at least, became intoxicated. The evidence on the part of the state further showed that bottles of various shapes and sizes, bearing labels showing what had been in the bottles, were found, and that they had contained alcohol in some per cent, and that they had the name of Wills and Armstrong thereon. These bottles were found scattered around the town at various places behind buildings and supposedly in places to which parties might resort to drink intoxicating liquors. Except in one or two cases there was no testimony to connect defendants with these bottles. On the part of defendants the testimony tended to show that the whiskey sold by them was sold upon prescriptions and that the bitters and other compositions sold by them were sold for medicinal purposes.
In the general instructions the jury were told that if they believed from the evidence that defendants "sold certain intoxicating liquors, drinks and beverages, containing alcohol, to-wit: whiskey, Harter's Wild Cherry Bitters Peruvian Strengthening Elixir and Waukasha Cream Ale, or other drinks and beverages containing alcohol, you will find the defendants guilty." The objection to these instructions is that they assume that all the compositions mentioned are "intoxicating liquors, drinks and beverages containing alcohol." These instructions are correct as applied to the sale of whiskey, but are erroneous as to the others. The court may assume or may instruct the jury that whiskey, alcohol, wine, beer and all other well known spirituous or fermented liquors are intoxicating, but Peruvian Strengthening Elixir, Harter's Wild Cherry Bitters and Waukasha Cream Ale have not yet reached such a distinction as intoxicating beverages as will warrant the court in taking judicial knowledge that they are intoxicating. The instruction should have submitted to the jury the question whether these liquids contained alcohol in any quantity and were capable of being used as a beverage, or contained alcohol and were sold as a beverage. There was abundant evidence from which these facts might be found, but the strength of the testimony did not warrant the court in assuming the fact to exist, but the determination of the fact should have been left to the jury. The jury were told in another instruction that before they could find defendants guilty the state must prove beyond a reasonable doubt that defendants sold "intoxicating liquor or beverage containing alcohol" but this did not remove the effect of the other instructions in which the jury were practically told that the Cherry Bitters, Peruvian Strengthening Elixir and Waukasha Cream Ale were...
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