State v. Baskett

52 Mo. App. 389 | Mo. Ct. App. | 1893

Q-ill, J.

Defendant was prosecuted before a justice of the peace for selling intoxicating liquors contrary to the druggists’ law, chapter 58, Revised Statutes, 1889. He was tried in the justice’s court, found guilty, fined $100, and appealed to the circuit court. In that court defendant moved to quash the information on the grounds: “First. Because the said information does not charge any offense under the laws of this state. Second. Because the said information does not follow the language of the statute creating the offense with which the defendant is intended to be charged. Third. Because the said information does not charge that the defendant is a druggist, an owner of a drug store or a pharmacist.” The court sustained this motion, and the state appealed.

Section 4617 of the law relating to druggists and their licenses (chapter 58,' Revised Statutes, 1889) provides that intoxicating liquors shall only be sold by druggists as prescribed by section 4621 (of the same chapter). Said section reads: “No druggist,proprietor of a drug store or pharmacist shall, directly or indirectly, sell, give away or otherwise dispose of alcohol, or intoxicating liquors of any kind, in any quantity less than four gallons,” etc. The information in this case reads: “one James Baskett, being then and there a dealer in drugs and medicines, did on, etc., at, etc., sell D. W. Reed intoxicating liquor in less quantities than one gallon, to-wit, one pint of wine,” etc.

A druggist, subject to prosecution under the foregoing act, is one who is registered as such, and, when so designated in section 4621, that particular class is intended. State v. Greene, 27 Mo. App. 627. But here the defendant is sought to be charged under the act as “a dealer in drugs and medicines.” One might be a dealer in drugs and yet not a registered ■druggist, as is the class sought to be regulated by the law contained in chapter 58, supra. The reason is thus ¡stated in the Greene case, supra: “He is indicted as being of a special calling and violating the law as such. 'The law which makes the offense and declares the punishment defines who may be the offender.” It is only then this particular class thus defined that can be brought to answer under this particular law. It was then clearly demanded of the state, when seeking to hold defendant as a violator of the druggist law, to charge defendant with being a druggist, as well as to prove the allegation at the trial.

More than this, the offense must be charged — substantially, at least — as set out in the act. It is not required that the exact words should be used, but there must be words used of equivalent import and meaning. State v. Barr, 30 Mo. App. 501; State v. Effinger, 44 Mo. App. 83. Now, the offense defined in the statute is, the selling “intoxicating liquors of any kind in any quantity less than four gallons,” etc. But defendant is charged in this information of selling “intoxicating liquors in less quantities than one gallon,” etc. This of itself was fatal to the information. Nor is it aided by the videlicet statement of one pint, etc. State v. Greenhagen, 36 Mo. App. 24; State v. Fanning, 38 Mo. 409.

It would seem that the prosecuting attorney inadvertently drew his information under the law as it existed prior to the act of 1881 — that is, under chapter 99, Revised Statutes, 1879. But this law was repealed,, and the law now in force restricting and controlling-druggists in the sale of intoxicating liquor is found, only in chapter 58, Revised Statutes, 1889. And it was, moreover (as we have already held), the design-of this law to cover the entire ground in relation to sales of liquor by druggists without reference to other statutes. The defendant, then, is amenable to that statute, and it alone. State v. Piper, 41 Mo. App. 160; Kelley’s Criminal Law & Practice [2 Ed.] p. 744.

The circuit court committed no error in quashing-the information, and the judgment is affirmed.

All concur.