State v. Finn , 1889 Mo. App. LEXIS 492 ( 1889 )

Smith, P. J.- —

The defendant was indicted, tried and convicted of the offense of ‘ ‘ unlawfully selling fermented and malt liquors, to-wit: One bottle of lager beer and one case of lager beer without then and there having taken and subscribed to an oath and giving the bond, as required by law of all persons before selling or offering to sell such liquors.” At the trial, which was before the court, an agreed statement of the facts was read in the evidence, and which was all the evidence offered, in which it was admitted that the defendant, within one year next before the finding of the indictment, had sold beer by the keg and by the case in the county, etc. The court found the defendant guilty, and thereupon the defendant filed motions for a new trial, and in arrest of the judgment, which being overruled he prosecutes his appeal here, basing his appeal on two distinct grounds: (1) That the finding of the court was against the evidence, and (2) that the indictment was defective in that it was indefinite and uncertain, and charged no offense known to the law.

I. The assault upon the verdict cannot be sustained. The rule of practice, as settled by the supreme court of this state is, that the indictment must negative the provisos and exceptions of the statute creating the offense. The subject-matter of the negative averment is taken as true unless disproved by the defendant. Such is the case in civil and criminal prosecutions for a penalty for doing an act, which the statutes do not permit to be done by any person except those duly licensed or authorized. Revised Statutes, section 1601; Kelly’s Crim. Law, sec. 916; State v. Lipscomb, 52 Mo. 32; State v. Meek, 70 Mo. 355; City of Kansas v. Muhlback, 68 Mo. 638; State v. Small, 31 Mo. 197; State v. Andrews, 27 Mo. 267; State v. Harper, 58 Mo. 530; State v. Edwards, 60 Mo. 490.

II. The ground upon which the defendant, by his appeal, questions the sufficiency of the indictment must likewise be ruled against him.

The selling of fermented and malt liquors was an illegal act, under the provisions of said section 1601, Revised Statutes, unless the defendant had first filed the oath and given the bond therein required.

And it was only necessary for the indictment to negative the fact of having filed the oath and given the bond in general terms.

The indictment fully met the requirement of this rule of criminal pleading, and was, therefore, not subject to the objection lodged against it. State v. Hayes, 38 Mo. 367; State v. Melton, 38 Mo. 369; State v. Rogers, 39 Mo. 431; State v. Jacques, 68 Mo. 261.

With, the concurrence of the other judges, the judgment of the circuit court of Morgan county is affirmed.