86 Mo. App. 632 | Mo. Ct. App. | 1901
Boggess was informed against by the prosecuting attorney of Lawrence county, for a violation of
“Dell Beason, being duly sworn on his oath states that on the thirty-first day of August, 189Y, at said county of Lawrence, the said J. W. Boggess, M. E. Stansberry and Wm. J". Rigney did then and there unlawfully sell intoxicating liquors in a quantity of less than one gallon, to-wit, one quart of beer without having a dramshop license as provided by law.
“Dell Beason.
“Subscribed and sworn to.before me this first day of September, 1897.
“T. B. Turk,
“Justice of the Peace.”"
The cause was taken into the circuit court by appeal. In the latter court the defendant filed his motion to quash the information on the following grounds, which was overruled:
“1. Because said information and the second count thereof does not charge any offense against the laws of this State. i
“2. Because the information shows on its face that it is based upon the affidavit of one Dell Beason, herewith filed, and said Dell Beason had no knowledge of the commission of the alleged offense, and said affidavit does not charge any offense against the laws of this State.
“3. Because the affidavit of Dell Beason, upon which this information is based, is insufficient in law and will not support the information.
“4. Because the affidavit of Dell Beason, upon which this information is based, attempts to charge this defendant*635 with selling liquor as a dramshop keeper, and the information based on said affidavit attempts to charge defendant with selling liquor as a merchant.
“5. Because the affidavit of Dell Beason, upon which this information is based, does not charge any offense against the laws of this State.”
The evidence and instructions were all directed to the offense of selling liquors in violation of the merchants license law. The defendant was found guilty, and his punishment assessed at a fine of one hundred dollars. To reverse the judgment defendant assigns as error the overruling of his motion to quash the information, and the overruling of his motion in arrest of judgment.
The affidavit of Dell Beason charged defendant with a violation of the dramshop law, and nothing more. The information begins with this statement, that “Edward J. White, prosecuting attorney within and for Lawrence county in the State of Missouri, and informs the court upon the affidavit of Dell Beason herewith filed, and upon his knowledge and belief and under his oath of office that on the thirty-first day of August,” etc. The prosecuting attorney might have disregarded the affidavit of Beason and filed the information under his oath of office. Eevised Statutes 1899, section 2750; State v. Ransberger, 106 Mo. 135; State v. Pruett, 61 Mo. App. 156. The offense of selling intoxicating liquors in violation of the dramshop law is a separate and distinct offense from that of selling the same articles in violation of the merchants license law. State v. Witty, 74 Mo. App. 550; State v. Alexander, 73 Mo. App. 605; State v. Randall, 73 Mo. App. 463; State v. Goff, 70 Mo. App. 295. And the prosecuting attorney could not take the equivocal position of bottoming his information on both the affidavit and his individual information and belief, when, as in this case, the one does and the other does not support the information.
