38 Mo. 359 | Mo. | 1866
delivered the opinion of the court.
In this case, the indictment alleged that the defendant “ did unlawfully and directly sell intoxicating liquors in less quantities than one gallon, to-wit, one glass of whiskey, without having a dram-shop keeper’s licence, or any other legal authority to sell the same.” The defendant moved to quash the indictment for the reasons that it did not charge him with selling liquors in a less quantity than one quart, nor aver to whom or for what price they were sold, nor state that they were sold to persons unknown; and his motion being overruled, he pleaded guilty, and filed his motion in arrest of judgment, for the same reasons.
As to the first objection, we áre referred to the act to tax and license merchants (Laws of 1858-9, p. 56, § 22), which provides that a merchant’s licence shall not authorize the sale of liquors in less quantities than one quart. This act has no application to the case here, which appears to be'founded
As to the price and the person, the weight of authority seems to be in favor of the position, that the indictment (in this sort of case) need not specify any price nor name, or in any way refer to the person to whom sold. The injury to the vendee is no part of the offence, which is complete within the statute upon a selling to any person whatever — State v. Ladd, 15 Mo. 580; State v. Miller, 24 Mo. 532; People v. Adams, 17 Wend. 475; State v. Munger, 15 Vt. 295; Halstead v. Commonw., 5 Leigh, 724; King v. Holden, 2 Taun. 334. A different rule was laid down on this point in the cases of the State v. Neals, 10 Mo. 500, and Austin v. State, 10 Mo. 591, though not necessarily involved in the decision; and on the authority of these cases it was said in State v. Hays, 36 Mo. 80, that an indictment would be bad without an averment of a selling to some person known or unknown, by name or otherwise. The point on which the decision rested in that case was, that as the indictment specifically alleged a sale to a particular person by name, and nothing more, it thus made the name and person to enter into the description and substance of the offence charged; that he must prove it as laid; that the charge as laid in that case was not proved, and that the offence proved was not contained in the indictment. This is the correct rule of pleading. The proof must conform to the allegation. But here the question is merely of the sufficiency of the indictment to constitute the offence under the statute. It is true, there can be no sale without a selling to some person; but an averment that the defendant sold intoxicating liquors, &c., in the words of the statute, may very well be deemed to import a selling to some person; and so, it was expressly said in the
Judgment affirmed.
