State v. Cox , 136 Mo. App. 415 ( 1909 )

BROADDUS, P. J.

The defendant was indicted for the illegal sale of intoxicating liquors. The indictment contains twelve counts. The first, fourth, seventh and tenth counts charge him with a violation of the Druggists’ and Pharmacists’ Act; the second, fifth, eighth and eleventh counts charge him with the offense of permitting liquors to be drunk on his premises; the third, sixth, ninth and twelfth counts charge him with illegal sales under the Dramshop Act.

The evidence introduced at the trial was that of one witness, who testified that in July, 1906, the defendant was engaged in the business of a druggist in Holt county, Missouri. He was questioned as follows, “Have you had any business transaction with Mr. Cox —that is, at any time -within one year prior to May 4, 1907? A. Why, I bought a half a pint of whisky in there. Q. You bought a half a pint of whisky in there? A. Yes, sir. Q. What did you pay for it? A. I believe it was a quarter.” This was all the testimony in tbe case. The court submitted the case to the jury on the third count of the indictment charging defendant with the illegal sale of intoxicating liquors. The jury returned a verdict of guilty and assessed defendant’s punishment at a fine of $150. ,

There was no nolle prosequi entered, nor any order of dismissal of the remaining eleven counts. The defendant appealed from the judgment.

Defendant insists upon reversal of the judgment for two causes, viz.: First, because the evidence was not sufficient to prove that defendant committed the offenses ; second, because it was error in the failure of the State to discontinue the remaining counts before the case was submitted to the jury.

We think it was sufficiently shown by the questions and answers of the witness to them that he bought liquor of defendant at his place of business in Holt county, Missouri, within one year prior to the finding of the indictment. No other reasonable inference can be drawn from the evidence.

As to the second point, it is held, “Where the court instructs only on one of two counts in an indictment, the other count will be presumed to have been abandoned.” [State v. Clark, 147 Mo. 20.] And it is held that on a trial under an indictment containing three counts, when defendant was found guilty on two of the counts, the failure to make any finding on the remaining count, there being no evidence to sustain it, was equivalent to an acquittal on such remaining count. [State v. McAnally, 105 Mo. App. 333.]

Under these authorities, there was no error in the action of the court in submitting the case to the jury on the one count of the indictment without having disposed of the' other counts by the entering of a nolle prosequi or submitting them to the jury under instructions.

Finding no error, the cause is affirmed.

All concur.