State v. Nations

| Mo. | Oct 15, 1881

I,

Sherwood, C. J.

The indictment drawn under section 85, 1 "Wagner’s Statutes, 504, is sufficient, since it pursues the language of the section under which it is drawn, The fact that it charges the sale of “certain fermented and distilled liquors, to-wit: one glass of whisky,” does not vitiate the indictment. The violation of the statute is accomplished whenever a sale occurs on Sunday of either “ fermented ” or “distilled” liquors. -But it is none the less a violation of the statute if the liquor-sold is both fermented and distilled. The gravamen of the offense consists in .the sale of liquor on Sunday, whether that liquor be distilled or fermented, or whether it be a liquor composed of a union of each of those kinds. It would be going a great way to hold that a man could go scott-free merely because the liquor he sold on Sunday was not, strictly speaking, an entirely pure article of either of the kinds whose sale is prohibited.

Besides, when the statute uses the disjunctive in enumerating offenses, it is competent to aver their commission conjunctively. State v. Fancher, 71 Mo. 460" court="Mo." date_filed="1880-04-15" href="https://app.midpage.ai/document/state-v-fancher-8006478?utm_source=webapp" opinion_id="8006478">71 Mo. 460.

Moreover, an indictment will not be held defective, if, after striking out the objectionable and immaterial portions thereof as surplusage, enough still remains to constitute a valid and substantial indictment. State v. Wall, 39 Mo. 532" court="Mo." date_filed="1867-01-15" href="https://app.midpage.ai/document/state-v-wall-8002139?utm_source=webapp" opinion_id="8002139">39 Mo. 532.

Hi

The motion for new trial, the instructions given and refused, are not incorporated in the bill of exceptions; consequently we are precluded from passing upon any whether occurring at the trial, or in relation thereto. Finding no error in the record proper, we affirm the judgment.

All concur.