City of Kansas v. Muhlback , 68 Mo. 638 ( 1878 )

Norton, J.

— The record shows defendant was convicted before the city recorder of the plaintiff, for selling liquor without license, in violation of the ordinance of plaintiff, and that he appealed to the criminal court of Jackson county. On a trial before that court, without a jury, the court gave an instruction in the nature of a demurrer to the evidence, and discharged the defendant. The only question is, whether such a demurrer ought to have been sustained. Appellant claims that the court erred in giving the instruction. The court below held that a single act of sale under the ordinance was not sufficient, aud in that the court erred.

The proceeding was commenced under an ordinance of the City of Kansas which subjected persons other than dramshop keepers duly licensed and druggists, to a fine of not less than $25 for selling intoxicating liquors in any quantity less than one quart. Section 17, acts 1875, page 206, conferred full power on the city council to pass such ordinance.

The evidence adduced on the trial tended to show that defendant had sold two drinks of intoxicating liquor at one sale in said city, and as there was no evidence showing, or tending to show, that defendant was either a druggist or licensed dramshop keeper, and authorized to make such sale,'ei’ror was committed by the court in sustaining the demurrer to the evidence and. rendering judgment for defendant. State v. Lipscomb, 52 Mo. 32; State v. Andrews, 27 Mo. 267; State v. Small, 31 Mo. 197.

The case of the City of Kansas v. Clark, ante, p. 588, is decisive of the point raised as to the right of the city to appeal.

Judgment reversed and cause remanded.

All concur.

Reversed.