142 Mo. App. 502 | Mo. Ct. App. | 1910
Indictment by grand jury for sale of liquor to minors, under section 2179, R. S. 1899, as follows (omitting caption) :
“The grand jurors for the State of Missouri, summoned from the body of Howell county, empanelled, sworn and charged to inquire within and for the body of Howell county, upon their oath, present and charge, that one Bush Holden, late of the county aforesaid, on the 3rd day of February, 1907, at and in the county of Howell and State of Missouri, did then and there, wilfully and unlawfully, directly and indirectly sell, give away and otherwise dispose, furnish and deliver certain intoxicating liquors, to-wit: one gill of whisky, one gill of beer, one gill of wine, one gill of blackberry and one gill of brandy, to one Charles Smith and one Grover Hansom, minors, under the age of twenty-one years, for a sum of money, to-wit: twenty cents, without the- written permission so to do of the parent, master or guardian of the said Charles Smith and Grover Ransom, first had and obtained, against the peace and dignitv of the State.
“J. L. Bess,
“Prosecuting Attorney.
“Mathias Ke,naga,
¡(A true bill.) “Foreman of Grand Jury.”
The omission of the words “then and there” immediately preceding the words “minors under the age of twenty-one years” was fatal; the indictment is not properly signed by the prosecuting attorney.
The indictment was signed “J. L. Bess, Prosecuting Attorney,” and w7as sufficient. [State v. Walker, 221 Mo. 1. c. 518, 108 S. W. 615, 120 S. W. 1198.]
The indictment charges that defendant, at the. county of Howell and State of Missouri, on the 3rd day of February, 1907, did, then and there, sell certain intoxicating liquors to one Charles Smith and one Grover Ransom, minors, under the age of twenty-one years. This was sufficiently clear to charge that the sale was made to minors in Howell county on the date mentioned without the repetition of the words “then and there.” These words indicate time and place, and when used, refer to some former allegation, and are only necessary when it is essential to refer to such former allegation. [Bobel v. People (Ill.), 50 N. E. 322.]
The Local Option Law was adopted in Howell county and went into effect March 6, 1907. This alleged offense was committed and the indictment filed prior to that time, but the trial was later, to-wit, April 4, 1907. Defendant now contends that the adoption of the Local Option Law suspended all prosecutions for illegal sales of liquor under other statutes. The Supreme Court has recently held otherwise. [State v. Walker, 221 Mo. 511, 108 S. W. 615, 120 S. W. 1198.]
Appellant contends that the court did hot instruct upon the question of reasonable doubt, and assigns this as error. The court gave the following instruction:
“The information is a mere formal charge and no evidence against the defendant, but he is presumed to
No exception was taken to this instruction at the time and defendant did not ask an instruction upon the question of reasonable doubt. The instruction should have gone a little further and told the jury that the burden was on the State to prove defendant guilty beyond a reasonable doubt, and to acquit him unless the State had done so, but as this charge was only a misdemeanor and no exceptions were saved to the giving of this instruction, and no instruction was asked by defendant on this question, he cannot now complain. The statute, Session Acts 1901, page 140, only permits advantage to be taken of a failure to properly instruct upon this question in felony cases. [State v. Ramsauer, 124 S. W. 67; State v. Poundstone, 124 S. W. 79.]
In misdemeanor cases, error in this respect can only be taken advantage of when exceptions are saved in the ordinary way.
Finding no reversible error, the judgment will be affirmed.