State v. Houts

36 Mo. App. 265 | Mo. Ct. App. | 1889

Biggs, J.,

delivered the opinion of the court.

The defendant was indicted, tried and convicted, for a'violation of what is known as the “local option law.” The indictment charged that on the eighteenth day of April, 1888, the “local option law” was in force in Scott county, and that the defendant on that day, in violation of said law, sold in Scott county one gallon of beer of the value of one and fifty-one hundredths dollars. The defendant was convicted and afine of three hundred dollars was assessed against him. He moved for new trial, and this motion having been overruled by the circuit court, he has brought the case to this court for review, and asks us to reverse the judgment and discharge him for the following reasons : First. Because the indictment is insufficient. Second. Because'the court committed error in giving and refusing instructions. Third. The judgment of the court is not supported by the evidence.

There is but little conflict in the testimony. It was admitted that on the eighteenth day of April, 1888, the “local option law” was in force in Scott county. The evidence for the state tended to prove that on the eighteenth day of April, 1888, at the town of Morley, in Scott county, the defendant sold, delivered and received the money for, two kegs of beer. It was developed on the cross-examination of the witnesses for the state, that the defendant was engaged in running what is known as a “beer car,” for the purpose of delivering beer, fora St. Louis brewery, along the line of railroad running through Scott county; that a few days prior to the delivery of the beer in Morley, the witness had met the defendant at Bismark, in St. Francois county, and gave the defendant an order for the purchase of one keg of beer, which was, afterwards, on the eighteenth of April, delivered by the defendant to witness at Morley, and that the witness paid the defendant for the beer at the time of the delivery. The testimony is not very clear as to the name of the purchaser of the other keg, and whether it had been sold on a previous order or not, but the evidence tended to prove, that it was paid for at Morley at the time of its delivery. The defendant testified that all the beer, sold by him at Morley, was sold and delivered on orders taken by him outside of Scott county, but he admitted that he received the money for the beer in Scott county, at the time it was delivered.

I. The contention of the defendant’s counsel is, that as the evidence shows that the beer was sold on orders given to the defendant outside of Scott county, the subsequent delivery, and the receipt by the defendant of the purchase money in Scott county, would not warrant the defendant’s conviction under the local option law.

The errors assigned by the defendant, in the giving and refusing of instructions, involve this question, and its determination will dispose of all matters of error arising on the record, except the defendant’s objections to the indictment. The counsel for the defendant asked the court to instruct that the evidence did not show a violation of the law by the defendant. This the court refused to do.

It is very clear to us, that, according to the defendant’s own testimony, he was guilty of a violation of law.

When a law has received the sanction of the lawmaking power of the state, it is the duty of the courts to so construe it, as to carry out, as far as practicable, the intention of the legislature in enacting the law and not by refinements and technical interpretation, to practically nullify it. The intention of this law was to prohibit and abolish the liquor trade in counties adopting it, and if we should so construe the law as to authorize and legalize the scheme devised by the defendant for carrying on - a' beer traffic in Scott county, the object and intention of the law would be defeated. The defendant was the' agent of a brewery company, and engaged in selling its beer, and if a proper interpretation of the statute would permit him to deliver and receive pay for beer in Scott county, when sold on orders taken or received outside of' Scott county, then it is apparent to all, that brewery companies and wholesale liquor dealers could carry on an extensive traffic in counties where the local option law has been adopted, and do so without any legal restraints or restrictions whatever.

It cannot be said that the purchase was actually made in St. Louis, and that the defendant bought the beer at the brewery as the agent of the purchasers, because the defendant was in the employ of the brewery company, and sent out with a car loaded with beer, to be sold and delivered along the line of the railroad. To so decide would be a palpable evasion of the law.

We do not intend to decide that a person living in a county, where the “local option law” is in force, may not buy “intoxicants” for his own use, or for medical purposes to be sold or disposed of under the restrictions of the law, but when such a purchase is made by a person for his own use, it must be made by him in person, or through some third person for him, not in any way interested or employed by the seller. Yowell v. State, 41 Ark. 355. This assignment of error must be ruled against the defendant.

II. The sufficiency of the indictment is challenged by the defendant on the grounds: First. That it failed to allege the names of the purchasers of the beer. Second. That the kind of beer that was sold was not stated, or that it was an intoxicating liquor, or beverage, containing alcohol. There has been some confusion and apparent conflict in the decisions of the supreme court of this state, as to the first objection urged by the defendant. But we think the law is now quite well settled that in an indictment for selling liquor it is sufficient to charge a sale simply, without stating in addition that it was made, to a person named, or unknown. State v. Ladd, 15 Mo. 430; State v. Miller, 24 Mo. 532; State v. Fanning, 38 Mo. 359; State v. Rogers, 39 Mo. 431.

The other objections, made by the defendant to the indictment, present, for solution, a more difficult question. The indictment failed to state the kind of beer sold and that it contained alcohol. “The local option law (sec. 1, Sess. Acts, 1887, p. 180) provides that, upon certain conditions, an election shall be held “to determine whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold,” etc. Section 6 provides, that if at such election a majority of the votes are cast against the sale of “intoxicating liquors,” “it shall not be lawful * * * to directly or indirectly sell * * * any kind of intoxicating liquors or beverages containing alcohol f etc. A literal reading of the two sections produces some uncertainty and doubt as to the true construction to be* placed on the statute. By section one (1) it is expressly stated that the words “intoxicating liquors” as used in the statute,, include wine and beer.

Counsel for the defendant urge that the indictment should state the kind of beer sold, and that it contained alcohol. We cannot agree to this. The object of the law was to prevent the sale of fermented or spirituous liquors, and not to prevent the sale of a beverage containing no alcohol. By the first section, beer and wine are included in and classified as intoxicating liquors, i. e., liquors containing alcohol; and while the statute fails to designate the kind of beer, yet, when we consider the object of the law we must so construe the word “beer” as used, to mean fermented or malt beer, i. e.y beer containing alcohol.

The indictment, in this case, follows the statute, which, as a general rule, is sufficient, and in passing on the sufficiency of the indictment, it must be held that the word “beer” as used in the indictment means beer in the common and almost universal acceptation of that term, to-wit, a fermented liquor containing alcohol.

Under a proper construction of the statute, we think that proof by the state, that a defendant sold beer, makes out a prima facie case. If as a matter of fact the beer sold did not contain alcohol, this should be shown as a matter of defense.

The words “containing alcohol,” used in section 6, apply only to the word “beverages” which immediately precedes them. If an indictment charged a violation of this law for a sale of a “beverage” which is not generally recognized as an intoxicant, then the indictment would be faulty, unless it averred that the article sold was an intoxicant. This conclusion necessarily disposes of the defendant’s objections.

The defendant also objects to the indictment because it fails to allege that the local option election was held. within ten days after the publication of the last issue of the paper containing the notice of the election. There are several reasons why this objection must go for nothing : First. The record shows that the defendant

admitted that the “law” was in force in Scott county at the time of the alleged sale of beer by him. Second. The indictment alleges that the election was ordered on the ninth of November and the election held on the ninth of December following, and that after the election was ordered the notice was published for four weeks prior to the holding of the election. This would necessarily make the publication of the last issue of the paper containing the notice within ten days of the holding of the election. Third. The defect (if any) was cured by verdict. (R. S., sec. 1821.)

Finding no error in the record, the judgment of the circuit court will be affirmed.

All the judges concur.