State v. Major , 81 Mo. App. 289 ( 1899 )

ELLISON, J.

The defendant, a druggist, was indicted, tried and convicted for selling liquor without a prescription. It is contended that the indictment is bad for uncertainty in that it charges the sale to have been made on or about the ninth day of May and on divers others days. The following is the charge as made by the grand jury, that, “John Major, he being then and there a proprietor of a drug store, on or about the ninth day of May, A. D., 1898,‘and at divers and sundry other times within one year next prior thereto, at the county of Callaway and state of Missouri, did unlawfully sell, give away and dispose of intoxicating liquors in less quantities than four gallons, to wit, one half pint of whisky to one, A. E. Holmes, he, the said Holmes, not having a written prescription, etc.”.

Defendant being charged as a druggist it was necessary to name the party to whom the sale was made. State v. Martin, 108 Mo. 117.

The exact day of sale, if necessary to specify, is alleged with sufficient certainty. A certain day is named and the allegation “and at divers and sundry other times” does not affect the statement of the day alleged. The charge is that a sale was made on or about the ninth day of May and that sales were made at other times.'

But it is said that the words, “on or about,” render the charge uncertain. We' think not. Eor if we conclude that no other day could be proved than the one alleged, yet the words objected to may be regarded as surplusage. State v. Hoover, 31 Ark. 677; Hampton v. State, 8 Ind. 336; Hardeback, v. State, 10 Ind. 459; State v. McCarty, 44 La. Ann. 323; Cook v. State, 11 Ga. 53; Com. v. Bryden, 9 Met. (Mass.) 137.

The evidence in our opinion contains sufficient to sustain the verdict. The judgment should be affirmed.

All concur.