State v. Moore

107 Mo. 78 | Mo. | 1891

Macfarlane, J.

Defendant was prosecuted in the circuit court of Mercer county, by information containing six counts, for selling intoxicating liquor in said county in violation of what is known as the “local-option law,” being now article 2, chapter 56, Revised Statutes, 1889, was convicted on the first and sixth counts of the information, and á fine of $600 imposed, from which he appealed to this court, a constitutional question being involved. It is admitted upon the record that the local-option law had been adopted and was in force in the county at the time the offenses charged were committed, if the law itself was constitutional. It is insisted, however, that the law is invalid, and has no force or effect, for the reason that it is repugnant to, and in violation of, the constitution of the state.

The first and sixth counts of the information, after setting out fully the proceedings under which the law was adopted, charged that defendant, at said county, in the state of Missouri, “did unlawfully sell to one John Burr, and divers other persons then and there being to this informant unknown, intoxicating liquor in less quantities than one gallon, to-wit, * * * one-half pint of alcohol, and one pint of certain other kind of intoxicating liquor composed of alcohol mixed with other liquids and substances, of which the kind and name are unknown to this informant, without taking out or having a license as a dramshop keeper, or other license or legal authority to sell the same.” The offense was charged in the first count to have ■ been committed on the first day of February, 1888, and in the sixth count on the eighteenth day of February, 1888.

I. Defendant on this appeal asks a reconsideration of the former rulings of this court which declare the constitutionality of the local-option law. No reason has been suggested, and none can be seen by ns, for receding from the conclusion reached in the cases of State ex rel. Maggard v. Pond, 93 Mo. 617, and Ex parte Swann, 96 Mo. 44. These cases were considered with great care, and the conclusion reached therein meets with our continued approval, and we reaffirm the constitutionality of said law.

II. The evidence shows that the local-option law was in force in said county from and after the sixth day of October, 1887. The fact also stands undisputed that, after the adoption of the law and before the filing of the information, defendant sold to John Burr and a number of other persons alcohol in quantities of one pint or less. This is admitted by defendant on the trial, but he undertakes to justify his action on the ground that he was a licensed druggist, and, as such, sold the alcohol for medicinal, mechanical, scientific or art purposes. It is heldin Ex parte Swann, supra, that section 4605 does not interfere in the least with the druggists ’ and pharmacists ’ law. Said section, in requiring such construction to be put upon the local-option act as not to prevent druggists and pharmacists from furnishing pure alcohol for the purposes therein designated, was not intended to grant them a license which was not authorized under the druggists’ law. This section was a mere recognition of the right a druggist had, under section 4621 of the druggists ’ act, to sell alcohol for art, mechanical and scientific purposes. After defendant had admitted the sale of alcohol, it devolved upon him to show lawful authority therefor. Whart. Crim. Law, secs. 708, 2434; State v. Suess, 20 Mo. App. 425; State v. Wright, 20 Mo. App. 412; State v. Baker, 36 Mo. App. 59.

It is not necessary that the information should have negatived a legal sale under the druggists ’ law. It is a well-settled rule that, when a statute contains provisos and exceptions in distinct clauses, it is not necessary to state in the indictment that the defendant does not come within the exception, or to negative the provisos it contains. State v. Shiflett, 20 Mo. 417; State v. Sutton, 24 Mo. 377. While section 4621 of the druggists £ law authorizes a druggist or pharmacist to sell alcohol or intoxicating liquors, it imposes certain conditions upon which alone they can do so. The intoxicating liquor can only be sold upon a written prescription of a regularly registered and practicing physician, and alcohol, when sold for art, mechanical and scientific purposes, must be on the written application, signed by a person known to the druggist to be a mechanic, scientist or artist. Without a compliance with these conditions, a druggist has no more authority to sell these articles than any unlicensed person.

Defendant does not pretend to have made the admitted sales under authority of the written prescription or application required by the act, but insists that his failure to require them was a violation of the druggists’ law alone, and he only made himself liable to the punishment therein prescribed. The local-option law applies alike to all citizens of the counties or cities adopting it. Druggists are not excepted from its operation as a class, but in certain cases and under certain conditions. In other respects they have no exemption. Defendant was prosecuted for violation of the local-option law, and his own testimony was a confession of the offense charged.

The instructions of the court were more favorable to defendant than he had the right to demand. Judgment affirmed.

All concur, except Sherwood, C. J., who dissents, and Barclay, J., absent.