State v. Feagan

70 Mo. App. 406 | Mo. Ct. App. | 1897

Bland, P. J.

An information was filed in the office of tbe clerk of the circuit court, charging the defendant of a violation of the dramshop act, 1891, by selling whisky, etc., in a less quantity than three gallons. Defendant moved to quash and abate the information upon the grounds that the prosecuting attorney had no knowledge of the commission of the offense, and that he filed it without first taking testimony of creditable witnesses of its commission. Testimony was taken on a hearing of the motion. The motion was overruled. Of this ruling the appellant complains.

PaítOTney^dmy of filing informaThe law does not require the prosecuting attorney to take testimony to prove to his satisfaction that an offense has been committed before he is. authorized to file his information, nor is-ue required to .have personal knowledge of the fact before he may do so. Section. 4057 of the Revised Statutes 1889, authorizes him to. file an information from his personal knowledge of the commission of the offense, or upon his information and belief that it has been committed. In the performance of this part of his official duty he is presumed to act upon his oath of office, and it is not competent for the courts to'inquire into that action further than to see that the information is based, either upon his knowledge of the commission, of the offense or upon his information and belief that it has been committed. One or the other of these facts should appear in- the body of the information, or by the affidavit of the prosecuting attorney attached thereto, unless it is based upon the affidavit of a competent witness, filed with the clerk of the court or deposited with the prosecuting attorney, as provided by section 4058, Revised-Statutes 1889. The fact that it may be shown, upon a motion to quash or abate an indictment, that the grand jury heard no evidence, is no authority for applying the same rule to informations. A grand jury is required to hear evidence, and to make their presentments upon sworn testimony. No such requirement is found in the code of criminal procedure with reference to informations. Nothing of this kind is contemplated by the statute. No authority is given the prosecuting attorney to swear and examine witnesses, or to compel a witness to go before an officer and make affidavit of the commission of an offense. He is in many cases, if he acts at all, compelled to act on information and belief. If the law were otherwise, the hands of the prosecuting attorney would be tied, and the prosecution of many offenses would be seriously hindered, if not wholly prevented.

IjunBrég¡Itót0ed violation1 o*ífor dramshop act. It appears from the evidence that one Dr. Groff, who resided at Farmington, 'owned a drug store at Marquand, fourteen miles away. He had a merchant’s license to conduct this business. His son and the defendant were the clerks in .the drugstore. The doctor visited it, occasion__ __ , _ ally. Neither young (tofE nor the defendant was a registered pharmacist, nor was there one in charge of the store. According to this evidence, the business of the store was -unlawfully conducted. Section 4610, Revised Statutes of 1889, requires that every drug store shall be conducted by a registered pharmacist. Every sale of spirituous, vinous or fermented liquors, or of drugs and medicines (except proprietary medicines) made in this store, was an unlawful sale. The sale of liquor in this case was not protected by the merchant license of Dr. Goff. State v. Gibson, 61 Mo. App. 368. The evidence proved the offense as charged. The fact that the defendant or that young Goff had had large experience as drug clerk, was no defense to this sale, or to the manner in which this drug store was conducted. The legal authority to compound the prescriptions of physicians and to conduct drug stores, requires something more than a merchant’s license and experience .as a drug clerk, to wit, the person in charge must be a registered pharmacist.

Judgment affirmed.

All the judges concur.