State v. Jaques , 68 Mo. 260 ( 1878 )

Henry, J.

1 selling liquor Mthoutliornse.

The objectio'ns to the indictment, that it does not allege to whom or at what place the liquor was so^’are met ky the cases of the State v. Spain, 29 Mo. 415; State v. Ladd, 15 Mo. 432; State v. Fanning, 38 Mo. 359; State v. Melton, 38 Mo. 369, in which it was held that those allegations are not indispensable to a good indictment. The State v. Neales, 10 Mo. 500, and Austin v. The State, 10 Mo. 591, to the contrary, have long since been overruled.

2.-: druggist: criminal pleading

The only remaining question is, whether the indictment is defective in failing to negative the existence of those facts, which, by the act of March 26th, ' . ° . 1874, authorized a druggist to sell intoxicating liquors in less quantities than one gallon. The second section of the General Statutes, (Wag. Stat., § 2, p. 549,) in relation to dramshops, prohibits every person from selling intoxicating liquors in any quantity less than one gallon, without taking out a license as a dramshop keeper. The act of 1874 makes exceptions to the general law. The indictment is drawn under the second' section of the act in relation to dramshops, and not under the act of 1874. How was the court to know that defendant was a druggist ? He was not indicted as such, and if he sold the liquor as a druggist, under circumstances which authorized the sale, that was a matter of defense. It was expressly averred that he had not taken out a license as a dramshop keeper, and had no legal authority whatever to sell. This has been repeatedly held a sufficient negation of any special or general authority to sell, other than that expressly negatived. Austin v. The State, 10 Mo. 591; State v. McBride, 64 Mo. 365, and cases supra. The exceptions or provisos contained in the same act need not be negatived, unless named in the section creating the offense. State v. O'Gorman, ante, p. 179, and authoi’ities there cited. The same doctrine applies where the exceptions are contained in a subsequent act. There is no foundation for the position that the second section of the act in relation to dramshops was repealed by the act of 1874. The demurrer to the indictment should have been overruled, and the judgment is reversed and the cause remanded.

All concur.

Reversed.