City of Galt v. Elder , 47 Mo. App. 164 ( 1891 )

Ellison, J.

This proceeding was instituted before the mayor of Galt, a town of the fourth class, by making and filing the following affidavit:

“ State oe Missouri, j >• ss. 4 4 County of Grundy, )

Affidavit for a state warrant in case of felony.

“Before me, John Doty, mayor of the city of Galt, within the county aforesaid, personally came David 'Cooksey, who, being duly sworn according to law, ■deposes and says, that, on or about the thirty-first day of December, A. D. 1890, in the county of Grundy, and state of Missouri, A. L. Elder did on the day aforesaid, .sold to the affiant one drink of whiskey, and further ■deponent saith not.

“David Cooksey,

“ Sworn to and subscribed before me this the thirty-first day of December, A. D. 1890.

“John Dott,

“Mayor.”

Defendant was convicted before the mayor. He appealed to the circuit court, where, on his motion, the complaint, or information, as it was called, was quashed, and the town brings the case here. We will give the appellant the benefit of the following statement of the facts as understood by her counsel. It appears that David Cooksey, on the thirty-first day of December, 1891, filed his affidavit with the mayor of plaintiff, charging defendant with unlawfully selling intoxicating liquors, and a warrant was issued thereon and defendant arrested and recognized to appear, January 3, 1891; and, January 3, cause was continued on application and at cost of defendant until January 9, 1891. On January 6, M. M. Keller, city attorney, filed two complaints against defendant, one charging the selling of intoxicating liquors in less quantities than one gallon, in violation of ordinance number 21. The other charged the selling of intoxicating liquors in less quantities than one gallon to David Cooksey (the complaining witness } in violation of ordinance number 21. Neither of these complaints were sworn to, and on the eighth of January, 1891, the city attorney filed, by leave of the mayor, another amended complaint in this cause. The complaint was duly sworn to by Mr. Keller, city attorney, and contained four counts. In the first, defendant was charged as a druggist with selling or giving away on the twenty-fifth day of December, 1891, intoxicating liquors in less quantities than one gallon. In the second count the charge was exactly the same, except the time alleged was the thirty-first day of December, 1890, and the defendant was charged with selling and giving away. In the third count it was not alleged that defendant was a druggist, but he was charged with unlawfully selling intoxicating liquors in violation of the ordinances of said town in less quantities than one gallon. In the fourth count it was charged defendant, being a dealer in drugs and medicines,' did, in violation of ordinance number 21 (giving title thereof) in the corporate limits of said city of Gralt, suffer and permit intoxicating liquors to be drunk upon his premises where sold, without having license as a dramshop keeper, etc.

From the foregoing it will be seen that there was quite a formidable array of charges brought against defendant to be based on so frail a foundation as the original complaint. The amended complaint, or information, as it was styled, was properly quashed. There was nothing upon which it could be founded. As a charge that a druggist, within the limits of Galt, had violated any ordinance, it is a total failure.

Even if the amendment could be regarded as an information, as in state prosecutions, it would under State v. Cornell, 45 Mo. App. 94, be held defective in not having a sufficient affidavit upon which to base it. The judgment is affirmed.

All concur.