State v. Harris

Missouri Court of Appeals

State v. Harris

47 Mo. App. 558, 1892 Mo. App. LEXIS 25

DecidedJanuary 19, 1892

StatusPublished

This text of 47 Mo. App. 558 (State v. Harris) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Harris, 47 Mo. App. 558, 1892 Mo. App. LEXIS 25 (Mo. Ct. App. 1892).

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Opinion

Thompson, J.

This is a criminal information for the unlawful sale of intoxicating liquor. The appellant was convicted and sentenced to pay a fine of $100 and appeals to this court. He has not assigned errors in this ■court, nor filed any statement or brief; and we are not advised, except from what we can gather from the record, as to the ground upon which he prosecutes this .appeal. Nevertheless we have looked carefully through [559]*559the record, as required by the statute, and have come to the conclusion that the judgment must be reversed.

The prosecution was upon the following information: ‘‘T. J. Braswell, prosecuting attorney, within and for the county of Oregon, in the state of Missouri, upon his oath of office informs the court that J. W. Harris and M. W. Harris, druggists and dealers in drugs and medicines, late of the county of Oregon and state of Missouri, on or about the eighth day of December, 1890, at and in the said county of Oregon and state of Missouri, did then and there unlawfully and wilfully and without legal authority sell intoxicating liquors in less quantity than one gallon, to-wit, one gill of whiskey, without then and there having any license or legal authority to authorize them so to do, against the peace and dignity of the state.”

Rejecting as mere words of description so much of the above as describes the defendants as druggists, it seems that it states an offense under the dramshop law; and the evidence adduced at the trial seems to show an offense under that law. But under the statute touching druggists this information is insufficient, because it fails to negative the fact that the liquor was sold upon written prescription of a physician, which is an exception in the enacting part of the statute; and under the decision of this court in State v. Martin, 44 Mo. App. 45 (to which we must adhere until otherwise advised by the supreme court), the information does not state an offense under the druggist law, for the further reason that it fails to name the person to whom the liquor was sold. Nevertheless, the prosecution seems to have been conducted under the druggist law for the court instructed the jury that, if they should find the defendant, J. W. Harris, guilty, they should, assess his punishment at a fine of not less than $100. This is the minimum fine under the druggist law (R. S. 1889, sec. 4621), but the minimum fine under the dram-shop law is $40. Sec. 4583. As a conviction under the-[560]*560information and evidence could only be had under the dramshop law, (since the information stated no offense under the druggist law), and as the jury were instructed to and did assess the minimum fine allowed by the druggist law, which is in excess of that allowed by the dramshop law, the judgment is reversed and the cause remanded. It is so ordered.

All the judges concur.

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Thompson, J.

This is a criminal information for the unlawful sale of intoxicating liquor. The appellant was convicted and sentenced to pay a fine of $100 and appeals to this court. He has not assigned errors in this ■court, nor filed any statement or brief; and we are not advised, except from what we can gather from the record, as to the ground upon which he prosecutes this .appeal. Nevertheless we have looked carefully through [559]*559the record, as required by the statute, and have come to the conclusion that the judgment must be reversed.

The prosecution was upon the following information: ‘‘T. J. Braswell, prosecuting attorney, within and for the county of Oregon, in the state of Missouri, upon his oath of office informs the court that J. W. Harris and M. W. Harris, druggists and dealers in drugs and medicines, late of the county of Oregon and state of Missouri, on or about the eighth day of December, 1890, at and in the said county of Oregon and state of Missouri, did then and there unlawfully and wilfully and without legal authority sell intoxicating liquors in less quantity than one gallon, to-wit, one gill of whiskey, without then and there having any license or legal authority to authorize them so to do, against the peace and dignity of the state.”

Rejecting as mere words of description so much of the above as describes the defendants as druggists, it seems that it states an offense under the dramshop law; and the evidence adduced at the trial seems to show an offense under that law. But under the statute touching druggists this information is insufficient, because it fails to negative the fact that the liquor was sold upon written prescription of a physician, which is an exception in the enacting part of the statute; and under the decision of this court in State v. Martin, 44 Mo. App. 45 (to which we must adhere until otherwise advised by the supreme court), the information does not state an offense under the druggist law, for the further reason that it fails to name the person to whom the liquor was sold. Nevertheless, the prosecution seems to have been conducted under the druggist law for the court instructed the jury that, if they should find the defendant, J. W. Harris, guilty, they should, assess his punishment at a fine of not less than $100. This is the minimum fine under the druggist law (R. S. 1889, sec. 4621), but the minimum fine under the dram-shop law is $40. Sec. 4583. As a conviction under the-[560]*560information and evidence could only be had under the dramshop law, (since the information stated no offense under the druggist law), and as the jury were instructed to and did assess the minimum fine allowed by the druggist law, which is in excess of that allowed by the dramshop law, the judgment is reversed and the cause remanded. It is so ordered.

All the judges concur.

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Bluebook (online)

47 Mo. App. 558, 1892 Mo. App. LEXIS 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-harris-moctapp-1892.

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