State v. Douglass, 48 Mo. App. 39

48 Mo. App. 39 | Mo. Ct. App. | 1892

Ellison, J.

Defendant was convicted in the circuit court of Bates county on an information charging that he, “being then and there a dramshop keeper,” did unlawfully sell intoxicating liquors to a minor without written permission, etc.

Revised Statutes, 1889, section 4569, define a dram-shop keeper as “a person permitted by law, being licensed according to the provisions of this article, to sell intoxicating liquors in any quantity not exceeding ten gallons.” Section 4588 of the same statute provides that “Every dramshop or wine and beer-housekeeper, or any other person, who shall sell intoxicating liquors to a minor without written consent of the parent,” etc., shall be liable to a conviction. The section further provides that if the offense be committed by a dramshop or wine and beer-housekeeper he. shall in addition to the civil penalty be guilty of a misdemeanor and fined. It thus appears that the statute has divided those who sell intoxicating liquors to a minor into three classes, viz., “dramshop keepers,” “wine and beer-house keepers,” and “ any other person.” The two first classes are liable to both the civil and criminal penalty and the third to only the civil penalty. From these sections of the same enactment it is clear that the legislature has intended to legislate against a dram-shop keeper as such, and that the dramshop keeper named in section 4588 is the dramshop keeper defined in section 4569. Therefore, when a prosecution is commenced under section 4588, wherein the indictment or information charges that the accused is a dramshop keeper the proofs must sustain the charge by showing him to be such as is defined in section 4569 ; that is, that ¡he is licensed as such. We have held that when one is indicted as a druggist the state should prove him to be a druggist as defined by the druggists and pharmacists’ law. State v. Green, 27 Mo. App. 626. See, also, State v. Hendricks, 98 Mo. 374, as well as State v. Heckler 81 Mo. 417. There was no evidence which we consider tended to prove the defendant to be a dramshop keeper as herein indicated, and for this the demurrer to the testimony should have been sustained. '

II. The age of the alleged minor may be proven by witnesses first describing the appearance of the person and then giving their opinion of his age. Benson v. McFadden, 50 Ind. 431; Commonwealth v. O’Brien, 134 Mass. 198. In the latter case a witness stated that ■on a certain day a female of youthful appearance: and in stature about as high as an ordinary man’s shoulder, •clad in a hat, shawl and short dress reaching to the knee, entered the place of business of defendant and purchased of him some ale. After so testifying, he was asked: “What in yonr opinion was the age of this girl?” and answered “not over thirteen years of age.” The question and answer were decided to be proper.

On another trial it ought to be an easy matter to show that the Francis spoken of by the witness was. the minor referred to in the information. The judgment is reversed, and the cause is remanded.

All concur.