State v. Fanning

38 Mo. 409 | Mo. | 1866

Holmes, Judge,

delivered the opinion of the court.

The indictment charged the defendant with “ unlawfully selling a large quantity of intoxicating liquors, to-wit, one pint of whiskey, without then and there having a dram-shop licence, or any other legal authority.” Tins indictment does not even pursue the language of the statute. The gravamen of the offence consists in selling intoxicating liquors in a less quantity than one gallon. It may be true that he sold a pint, but as a part of the larger quantity alleged to have been sold. This is a greater laxity in pleading than can be allowed. The exact quantity is immaterial, provided it be a less quantity than one gallon; but this fact should be distinctly averred, as well as the quantity sold.

Judgment reversed.

Judge Wagner concurs; Judge Lovelace absent.