State v. Shafer , 82 Mo. App. 58 ( 1899 )

GILL, J.

Defendant was indicted as a merchant for selling intoxicating liquors in less quantity than five gallons, contrary to section 6915, Revised Statutes 1889. It seems that defendant first moved to quash the indictment, but for what reason does not appear. Subsequently, however, as the record shows, defendant appeared in open court, withdrew his motion to quash and entered a plea of guilty — the record reading: “Now comes the prosecuting attorney for the state, and also comes the defendant herein, in person and in presence of his attorneys and counsel, and in open court pleads guilty to selling liquor without taking out or having a license as a dramshop keeper, as charged in the indictment.” And thereupon the court imposed a fine of $100.00, and from a judgment therefor — a motion in arrest being filed and overruled — defendant has appealed.

The indictment is attacked on the alleged ground that it failed to show upon its face that defendant was a licensed merchant as defined by the statute. ¥e think the objection not well taken. The indictment charges that on a certain day in DeEalb county “one Henry Shafer being then and there a merchant and dealer in drugs and merchandise did then and there unlawfully sell to Ered Dill, vinous, fermented and spirituous liquor in less quantity than five gallons, to wit,” etc. While now it is true that the indictment does not set out the statutory definition of a merchant or that he was licensed as such, yet it declares against the defendant as a merchant. This was sufficient. When it came to trying the ease it may have been necessary, as a matter of evidence, to prove that defendant filled the statutory definition of merchant; still, as was said in State v. Carnahan, 63 Mo. App. 244, “it does not follow that such matter of evidence need be alleged in.the indictment.” ' The authorities cited by defendant’s counsel have no bearing on the question here presented.

More than this, the defendant pleaded guilty “as charged in the indictment.” It may be well contended that thereby defendant confessed that he was a merchant as defined by the statute, and that as such he violated the law. For under section 6915, as a merchant he was enjoined not- to sell liquors in any quantity less than five gallons for any purpose whatever.

There is no merit in the appeal and the judgment will be ■affirmed.

All concur.