State v. Finn, 38 Mo. App. 504

State v. Finn

38 Mo. App. 504 | Mo. Ct. App. | 1889

Lead Opinion

Smith, P. J.- —

The defendant was indicted, tried and convicted of the offense of ‘ ‘ unlawfully selling fermented and malt liquors, to-wit: One bottle of lager beer and one case of lager beer without then and there having taken and subscribed to an oath and giving the bond, as required by law of all persons before selling or offering to sell such liquors.” At the trial, which was before the court, an agreed statement of the facts was read in the evidence, and which was all the evidence offered, in which it was admitted that the defendant, within one year next before the finding of the *507indictment, had sold beer by the keg and by the case in the county, etc. The court found the defendant guilty, and thereupon the defendant filed motions for a new trial, and in arrest of the judgment, which being overruled he prosecutes his appeal here, basing his appeal on two distinct grounds: (1) That the finding of the court was against the evidence, and (2) that the indictment was defective in that it was indefinite and uncertain, and charged no offense known to the law.

I. The assault upon the verdict cannot be sustained. The rule of practice, as settled by the supreme court of this state is, that the indictment must negative the provisos and exceptions of the statute creating the offense. The subject-matter of the negative averment is taken as true unless disproved by the defendant. Such is the case in civil and criminal prosecutions for a penalty for doing an act, which the statutes do not permit to be done by any person except those duly licensed or authorized. Revised Statutes, section 1601; Kelly’s Crim. Law, sec. 916; State v. Lipscomb, 52 Mo. 32; State v. Meek, 70 Mo. 355; City of Kansas v. Muhlback, 68 Mo. 638; State v. Small, 31 Mo. 197; State v. Andrews, 27 Mo. 267; State v. Harper, 58 Mo. 530; State v. Edwards, 60 Mo. 490.

II. The ground upon which the defendant, by his appeal, questions the sufficiency of the indictment must likewise be ruled against him.

The selling of fermented and malt liquors was an illegal act, under the provisions of said section 1601, Revised Statutes, unless the defendant had first filed the oath and given the bond therein required.

And it was only necessary for the indictment to negative the fact of having filed the oath and given the bond in general terms.

The indictment fully met the requirement of this rule of criminal pleading, and was, therefore, not subject to the objection lodged against it. State v. Hayes, 38 Mo. 367; State v. Melton, 38 Mo. 369; State v. Rogers, 39 Mo. 431; State v. Jacques, 68 Mo. 261.

*508With, the concurrence of the other judges, the judgment of the circuit court of Morgan county is affirmed.

Rehearing

ON MOTION FOE EEHEAEING.

The defendant renews the objection urged in his original argument and brief, that it devolved upon the state to prove that he sold fermented and malt liquors, without having taken and subscribed an oath required by section 1601, Revised Statutes. It is a well-settled rule of criminal pleading that an indictment must negative the provisions and exceptions of the statute creating the offense, and it is equally well settled, that the subject-matter of such negative averment is taken as true, unless disproved by the defendant.

This rule of practice in cases, where persons have been charged with selling liquor without license, has the sanction of a long line of adjudged cases in this state, beginning with Wheat v. State, 6 Mo. 238. But it is contended that, upon a trial on an indictment based up’on section 1601, that a different rule should obtain, as to the burden of proof, than that, on indictments for selling liquor without license. It is quite difficult to perceive why this exception to, or qualification of, the rule just stated should be allowed. Section 1601, Revised Statutes, requires the liquor seller to appear before the clerk of the county court, of the county where the liquors are tobe sold, and take an oath, and give a bbnd, that he will not mix or adulterate, etc., the liquors offered for sale by him. The statute is, that one may not sell liquor without a license. Section 1601 simply imposes a further condition upon the privilege to sell. A compliance with both conditions is imperatively exacted by the statute before he can sell. He kndws whether he has yielded compliance in either case. If the burden of showing this fact is properly imposed upon him, in the one case, why not in the *509other. The reason 'for suchj an imposition of the burden upon him, in tlie one case, exists as well in the other.

If the rule, that the subject-matter of a negative averment is to be taken as true, applies to a trial on an indictment for selling liquor without license, it is quite difficult to understand why it does not obtain in a trial on an indictment for selling liquor without taking the oath and giving the- bond required by the statute referred to. If the onus is upon the defendant in the one case, it must be so in the other.

The case of Cheadle v. State, 4 Ohio St. 477, seems to have for its foundation the opinion of Mr. Chief Justice Shaw in Commonwealth v. Thorlow, 24 Pick. 374, where it was held that, in the prosecution in that case, which was for selling liquor without license, the government must prove the negative averment, and that the accused was not licensed. This -ruling does not accord with that of our supreme court, in this regard, as is seen by the cases cited in the opinion. The case, therefore, of Cheadle v. State, supra, cannot be followed by us, if it asserts the rule for which defendant contends.

We can discover no reason why we should depart from the ruling already made in the case. It results that the motion is overruled.