State v. Keith , 46 Mo. App. 525 ( 1891 )

Ellison, J.

-The defendant was indicted for selling liquor in less quantities than one gallon, without having a dramshop keeper’s license, or other legal authority so to do. He was convicted, and he prosecutes this appeal. The evidence not showing in an altogether satisfactory manner that the defendant had made the sale, the court, at the instance of the state, gave an instruction directing the jury to find the defendant guilty if he “was present aiding, assisting, abetting, countenancing or in anywise encouraging the making of such sale.” This was error. In misdemeanors of the class to which liquor-selling belongs, ‘ there are no aiders or abettors. A buyer. of liquor certainly aids, countenances, assists and encourages a sale; yet, it would hardly be pretended that he would be liable to punishment under the dramshop law.

“If the terms of a statute distinctly limit the penalty to persons who participate in the act only in a certain way, those terms furnish the rule of the court. Or, if the expression be general, but the offense is of minor turpitude, and especially if it be only malum prohibitum, the courts, by construction, will limit its operation to those persons who are more particularly within the reason of the express words of the enactment.” 1 Bish. Crim. Law, sec. 657. Following this principle, it has been held that the purchaser is not liable to punishment* either upon the theory of being a principal or an enticer, aider or abettor. Harvey v. State, 7 Lea, 113; Commonwealth v. Willard, 22 Pick. 476. However, if one, himself, makes a sale, he is liable whether he be owner, agent or servant of the owner, and whether he be acting with or without compensation. But, in this case the evidence calls upon us to make this additional remark: If the defendant was not the owner, or the agent or servant of the owner but merely, at the owner’s request, set out the glass into which the liquor was poured, and from which it was drunk, he is not guilty of selling.

Judgment reversed and cause remanded.

All concur.