| Mo. | Apr 15, 1884
The defendant was tried, convicted and fined $50, under an indictment drawn under section 5456, Revised Statutes, which is as follows : “Any person haying a license as a dramshop keeper, who shall keep open such dramshop, or shall sell, give away, or otherwise dispose of, or suffer the same to be done upon or about his premises, any intoxicating liquors, in any quantity, on the first day of the week, commonly called Sunday, shall, upon
“ The penalty alluded to in the foregoing section, as being now provided by law,” is contained in section 1581, which is as follows: “ Every person who shall expose to sale any goods, wares or merchandise, or shall keep open any ale or porter house, grocery or tippling shop, or shall sell or retail any fermented or distilled liquor on the first day of the week, commonly called Sunday, shall, on conviction, be adjudged guilty of a misdemeanor, and fined not exceeding $50.”
The cause was tried by the court, without the aid of a jury, and the testimony is amply sufficient to support a finding, that the defendant’s barkeeper sold a drink of whisky, on Sunday, to the prosecuting witness. A dram-shop keeper is defined by section 5435 to be a person permitted by law, being licensed, as provided by the chapter regulating dramshops, to sell intoxicating liquors in any quantity not exceeding ten gallons.
As the defendant was charged in the indictment with having sold intoxicating liquors on Sunday, as a dramshop keeper, and as there was no testimony whatever that she had a license as such, she was improperly found guilty of the offense in manner and form as charged in the indictment. But it does not follow that she should have been acquitted.
Two classes of offenders, against the law prohibiting the sale of intoxicating liquors on Sunday, are recognized by the statutes and different punishments pre meted ouf to each,
If the person who sells intoxicating liquors on Sunday be a dramshop keeper, as defined by law, he is subject to a fine of $50, and a forfeiture of his license, and to a deprivation of the right to obtain a license for two years thereafter, All other pei’sons who sell intoxicating liquors op
The verdict in this case being, guilty as charged, without any evidence that the defendant was a dramshop keeper, that she had a license as such, the judgment of the circuit court must be reversed.
It is also objected on behalf of the defendant, that there is no testimony that she authorized the sale made by her barkeeper. It was for the defendant to show that it was not authorized, and was forbidden. State v. Reiley, 75 Mo. 521" court="Mo." date_filed="1882-04-15" href="https://app.midpage.ai/document/state-v-reiley-8007070?utm_source=webapp" opinion_id="8007070">75 Mo. 521.
Eor the error above indicated, the judgment will be reversed and the cause remanded.