| Mo. Ct. App. | Dec 29, 1908
The prosecuting attorney of Clark county filed an information, containing three counts, before a justice of the peace, in said county, in each of which it is charged that defendant at different times, unlawfully sold intoxicating liquor in less quantity than three gallons, to-wit, one quart of beer, without taking out a dramshop license or having any other legal authority to sell the same. In due course, the case was appealed to the .circuit court, where on a trial de novo to a .jury defendant, was found guilty on each of said counts. An unavailing motion for new trial was filed and defendant appealed to this court.
The information was verified by the affidavit of the prosecuting attorney, and was sufficient in form and substance. The State’s evidence tended to show that one O. W. Grant, the prosecuting witness, on the second day of August, 1906, at about three o’clock in the afternoon, purchased of defendant one quart of beer for which he paid twenty-five cents; that within an hour or an hour and a half thereafter he purchased another quart for which he paid twenty-five cents, and later in the evening he purchased six pint bottles for which he paid at the rate of twenty-five cents per
By instructions Nos. 1, 2 and 3, given by the court for the State, the jury were told to find defendant guilty if they found from the evidence that he sold intoxicating liquor in any quantity less than three gallons, without then and there having license as a dram-shop keeper, or any other legal authority to sell the same. It is contended by defendant that these instructions are erroneous in that they fail to name the liquor sold, to-wit, beer, and that the term “intoxicating liquor” did not ex vi termini include beer. This question came up in the case of State v. Besheer, 69 Mo. App., where at page 75, this court said: “Webster defines beer to be (1) ‘a fermented liquor, made from any malted grain,’ (2) £a fermented extract of the roots and other parts of various plants as spruce, ginger, sassafras, etc.’
“In People v. Wheelock, 3 Park 9, the Supreme Court of New York held, that the word 'beer’ in its ordinary sense, denotes a beverage which is intoxicating.
“The Kansas City Court of Appeals, in the case of State v. Heinze, 45 Mo. App. 403" court="Mo. Ct. App." date_filed="1891-05-11" href="https://app.midpage.ai/document/state-v-heinze-6616717?utm_source=webapp" opinion_id="6616717">45 Mo. App. 403, held that section 4395, Revised Statutes 1889, in effect defined beer to be intoxicating liquor. To the same effect is State v. Houts, 36 Mo. App. 265" court="Mo. Ct. App." date_filed="1889-05-14" href="https://app.midpage.ai/document/state-v-houts-8259767?utm_source=webapp" opinion_id="8259767">36 Mo. App. 265.
“In the light of these authorities and in obedience to the legislative will, as interpreted by the Kansas City Court of Appeals in State v. Heinze, supra, we construe the word 'beer’ as used in the indictment, and instructions given in this case,, to mean a fermented and intoxicating liquor.”