State v. Burns

237 Mo. 216 | Mo. | 1911

FERRISS, J.

Defendant was convicted under an information which, in proper form, charged that he did “willfully and unlawfully order for, receive, keep, store and deliver . . . one-half pint of whiskey for one Alex Hixon,” in a local option county, in violation of the Act of 1907, Laws 1907, p. 231 (now Sees. 7226, 7227, 7228 and 7229, R. S. 1909), the first three sections of which read as follows:

“Section 1. It shall be unlawful for any person or persons not a licensed dramshop-keeper or by law authorized to sell liquor as a wholesaler, to order for, receivei, store, keep or deliver, as agent or otherwise, of any other person, intoxicating liquors of any kind.

“Sec. 2. No person shall keep, store or deliver for or to another person, in any county that has adopted'or may hereafter adopt the Local Option Law, any intoxicating liquors of any kind whatsoever.

“Sec. 3. Provided, however, that nothing in this act shall be construed to prohibit any person from ordering liquor for his own or family use, where such liquor is sent direct to the person using same.”

The facts were that defendant was in a buggy, at Mt. Yernon, Lawrence county, when Alex Hixon asked him where he was going. He said “Ereistatt,” a town about ten miles away. Hixon asked him if he would bring him a pint of whiskey if he gave him the money for it. Defendant said he would, whereupon Hixon gave him a half dollar. At the same time, and under similar circumstances, one Bob Hughes gave defendant fifty cents to get a pint of whiskey for him. Defendant got the whiskey at Ereistatt, and returned with it to Mt. Vernon. The next day defendant started to deliver the whiskey to Hixon and Hughes, but was arrested by the sheriff while on the way. The officer took the whiskey from him and locked it up, and it never was delivered.

The Local Option Law had been adopted in Lawrence county, outside Aurora, before this event, and had also been adopted by the city of Aurora, a city of more than 2500 inhabitants.

The ease was tried by the court, a jury being waived. The court rendered a general finding that the defendant was “guilty as charged in the information,” and sentenced him to six months in jail.

I. It is contended by the defendant that inasmuch as the information charged several offenses, defined in both, sections 1 and 2 of the act, a general finding was erroneous. We think not. That portion of the charge in the information, “order for, receive,” which is based upon section 1 of the Act of 1907 (now See. 7226, R. S. 1909) may be rejected as surplusage (Statute of Jeofails, Sec. 5115, R. S. 1909; State v. Rawlings, 232 Mo. 544) inasmuch as we held in the Rawlings ease that section one was invalid. The remainder of the charge, to-wit, “keep, store and deliver,” is good under section two of the act.. While the statute makes it an offense to either keep, store or deliver, it is good pleading to charge all three conjunctively in one count, and proof of either will sustain the information and justify a general verdict. [State v. Currier, 225 Mo. 642; State v. Rawlings, supra.]

II. Defendant claims that upon the uncontradieted evidence he is not guilty of an offense against this Act of 1907. Section three of this act (See. 7228, R. S. 1909) provides that “nothing in this act shall be construed to prohibit any person from ordering liquor for his own or family use, where such liquor, is sent direct to the person using same.”

True, the whiskey in question was wanted by Hixon for Ms own use. It is also true, as argued by the counsel for defendant, that if, under the last-named section, “a person has a right to order wMskey and have it sent to Mm, some person or persons must be allowed to bring it.” The statute, however, plainly contemplates, by the expression “where such liquor is sent direct to the person using same,” that the buyer shall deal in Ms own name with the seller, and that the seller shall send the wMskey directly to the buyer, knowing to whom he is sending it. Whether the order goes by mail or by messenger may not be important, nor whether the article is sent by express or by messenger, but it is important that the transaction should be between the one who orders for his own use and the dealer who fills the order. Other-' wise one could traffic in whiskey in defiance of the statute by securing his customers and payment in advance, then buy the whiskey in his own name, deliver it to his respective customers and, if charged under the statute, say, “I was merely a messenger for persons who ordered for their own use.”

It does not appear that the dealer in Preistatt sent the whiskey to .Hixon, nor that he knew that Hixon was to get it. We can only conclude that, so far as the dealer at Preistatt was concerned, defendant bought the whiskey as for himself.

III. The constitutional objections raised are disposed of and held insufficient in State v. Rawlings, supra.

IV. ' The evidence is sufficient to sustain a conviction for keeping for another person. We do not agree with the Attorney-General that intention to deliver is equivalent to delivery. The defendant did not deliver the whiskey to Hixon, and therefore cannot be convicted of delivering, whatever may have been his intention. He did, however, retain in his possession, that is, keep in his possession over night, the whiskey for Hixon. We think this fact brings defendant within the statute. The lawmakers intended to cover each step in the process by which one man should get liquor for another. This defendant had taken every stép excepting the last — that of delivering. Prom the time he bought the whiskey until the attempted delivery he kept it in his possession, and was within the terms as well as the spirit' of the statute. Doubtless a mere carrier or messenger, in the case of a direct order as explained above, may retain, lawfully, possession for such time as is convenient and customary for delivery. He is not keeping it during such interval in the sense intended by the statute. But the defendant, who was in pos-, session of the whiskey for an unlawful purpose, was, during every moment of such possession, keeping it, under our construction of the statute. This is in line with the distinction made by us in the Rawlings ease between storing and keeping.

• Finding no reversible error in the record, the judgment is affirmed.

Kennish, P. J., and Brown, J., concur.