State v. Emberton

45 Mo. App. 56 | Mo. Ct. App. | 1891

Ellison, J.

— The defendant was arrested under an information charging him with a violation of the local-option law, chapter 56, Revised Statutes, 1889, in Sullivan county. The prosecuting attorney filed an amended information charging a violation of the dram-shop law in selling liquor in less quantity than one gallon without having a license therefor. This amended information was, on motion of defendant’s attorney, quashed, and the state appeals, presenting such action as the sole complaint.

We will sustain the ruling of the circuit court. The offense charged in the amended information is not the offense charged in the original, and though they both relate to the sale of liquors, the legal offense cannot possibly be the same under the provision of the two laws. If the local-option act was in force in Sullivan county, there could be no offense against the dramshop law, and vice versa. Both laws cannot be in force at the same time in the same county. Assuming that the amended information was filed for the reason that the 1 ocal-option law was not in force, then the original information charged no offense whatever, and the amended one sets up an offense affirmatively appearing to be different from that charged in the original.

Revised Statutes. 1889, section 4881, permit an information to be amended, but it was not intended thereby to authorize the charge of an offense under one law to be changed to a charge of an offense under another and totally different law. The judgment is affirmed.