State v. Ladd, 15 Mo. 430

15 Mo. 430 | Mo. | 1852

Ryland, J.,

delivered the opinion of the court.

The points relied upon by counsel for the defendant below to reverse the judgment in this case, are the insufficiency of the indictment and the refusal of the court to give the instruction prayed for by the defendant to the jury.

I will first consider the indictment. It charges, that the defendant sold intoxicating liquors in a quantity less than a quart, to wit: one pint of whisky, one pint of gin, &c., to divers persons to the jurors unknown, without any license, &c. The only objection made to it rests on the omission to state the price for which the liquor was sold. There is no price mentioned in the indictment at and for which the liquor was sold. The defendant relies upon the case of Neales vs. the State, 10 Mo. R. 500. In this case it was said by the court, “that the charge is that the defendant, did then and there unlawfully sell intoxicating liquor in a quantity less than a quart. To whom sold, the description of the liquor sold and the price for which it was sold are entirely omitted in the indictmentf and yet this would appear necessary to be stated otherwise, how can the court see that an offence has been committed or the defendant be apprized of the nature of the accusation against him and be able to prepare for his defence.” Ifl answer to this, I remark that these objections were not made to the indictment in Neales’ case, nor was the court called upon to notice the indictment in these particulars. Strictly, this point was not before the court in that case, and what? was said in relation thereto, may be considered as obiter dicta.

This court in the case of Page vs. the State, 6 Mo. Rep. 205, upon an indictment for selling clocks without a license, declared that a sale must be alleged, but it was not necessary to allege to whom it was made nor the price given.

The offence is confined to the person selling, it does not injure or affect the rights of another person. The charge is complete, when it alleges that the sale was of intoxicating liquor in less quantity than one quart, (viz:) a pint, withoutlicense. The person to whom sold and the price are not material; nor do I think the omission to insert the name or the price can be considered as vitiating the indictment. In the case of the People vs. Adams, 17 Wend. 475. The supreme court of New York, Ch. Jus. Nelson delivering the opinion, decided, that it was not necessary in an indictment for selling spirituous liquors without license to specify the names of the persons to whom the sales were made. “The court remarked, that the ofience upon the statute consists in the act of selling the spirituous liquors without license, and therefore the designation of the persons to whom sold is in no way material to constitute it.” By parity of reasoning the price is equally immaterial. This is a strong case in support of this indictment against Ladd.

In the case of the State vs. Munger 15 Vermont Rep. 295, upon an indictment for selling spirituous liquors by the small measure, without a license, it is not necessary that it should be averred to whom they were sold. In this case the names of the persons to whom the liquors were sold and the priee at which the liquors were sold are entirely omitted. The indictment is set forth containing two counts, neither of which, mentioned the price or names of the persons to whom the defendant is charged to have sold; yet it was held sufficient. In this last case the court said: “It is contented that the indictment is bad', because it is not averred to whom the liquor was sold or that the person or persons are unknown. It is of iio importance that the indictment should contain such an averment. The offence complained of, works no injuiry upon the individual rights of a person to whom the sale was made and none are supposed to be violated. It has no analogy to an indictment for theft to which it was likened by the counsel, where the violation of private rights enters into the very essence of the crime.”

The sale of intoxicating liquor, ex vi termini, includes a person to whom it was made, and a price — and I cannot see any reason or necessity for the pleader to insert either in the indictment. Under this view of the law the indictment is sufficient.

If it be not necessary to name the persons to whom the liquor was sold, and from the above authorities, I am satisfied it is not, then the court did not err in refusing to give the defendant’s instruction. In the case of Hulstead vs. the Commonwealth, 5 Leigh’s Report 724. The general court of Virginia, held unanimously “that, on the trial of an indictment for retailing spirits without a license charging that the sale was made “to persons to the jurors unknown,” proof, that the persons were actually known to the jury.when it found the indictment, does not constitute a variance between the proof and the allegations of the indictment, so as to defeat the prosecution.

This is in conformity with the decision of this court in Dove’s case, 2 Virg. cases 26, where this court decided that an indictment for retailing spirits need not name the person to whom the liquor was sold. The insertion therefore of the words “to persons to the jurors unknown,” must be taken as surplusage. The case of Hays vs. the State, 13 Mo. Rep. 246, contains nothing against the views herein expressed.

From the whole of the present case appearing by the record before us, I find nothing requiring the interference of this court. The other judges concurring, the judgment of the court below is affirmed.