64 Mo. App. 123 | Mo. Ct. App. | 1895
The defendant was prosecuted under an information presented in the St. Louis court of crim
The objections to the information are, that it does not specify the kind of liquor sold and does not designate the defendant’s place of business. The charge is, that the defendant sold “intoxicating liquors.” In this the information followed the language of the statute (R. S., section 4590), which has been held sufficient by the supreme court as to indictments drawn under this section. State v. Roehm, 61 Mo. 82; State v. Braun, 83 Mo. 480. Neither is there any merit in the remaining objection. We can imagine no good reason for requiring the defendant’s place of business to be designated.
The assignment, that there was no proof that intoxicating liquor was sold, is not borne out by the record. There was evidence tending to prove that the defendant sold a bottle of whisky at the time alleged in the information.
The assignment, that there is no competent evidence to prove that the defendant was a licensed dram-shop keeper, must be sustained. The information is drawn under section 4590, which provides: ‘ ‘Any person having a license as a dramshop keeper, who 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 conviction thereof, be punished by fine not less than fifty, nor more than two hundred dollars, shall forfeit such license, and shall not again be allowed to obtain a license to keep a dramshop for the term of two years
The court should have instructed the jury that they could not find the defendant guilty as charged, but if they believed that he had sold whisky at the time alleged, it was their duty to convict him under section 8855 of the statute, which makes it a misdemeanor for any person to sell fermented or distilled liquors on Sunday. State v. Heckler, 81 Mo. 417.
With the concurrence of the other judges, the judgment of the court of criminal correction will be reversed. As the defendant may be tried for a violation of section 8855, supra, the cause will be remanded. It is so ordered.