41 Mo. App. 160 | Mo. Ct. App. | 1890
The defendant was indicted and convicted as a merchant, under section 6334, Revised Statutes, 1879, as amended by the Laws of 1877, page 217, now section 6915, Revised Statutes, 1889, for selling liquor, in less quantity than five gallons. The following is the agreed statement of facts upon which the trial court found him guilty, viz.:
“On the day mentioned in the indictment the defendant sold to the witness John Daniels (who is indorsed as a witness on the back of the indictment in this case) one gallon of lager beer ; said gallon of lager beer was sold to said witness Daniels by the defendant, and in Nodaway county, Missouri, at the drugstore which the defendant owned and was conducting; said drugstore containing a general stock of drags and medicines such ás are usually and generally kept by druggists ; that, at the time of said sale, the defendant had a merchant’s license; that, at the time of said sale of one gallon of lager beer by defendant, at his drugstore, to the witness Daniels as aforesaid, the defendant was then and there conducting and operating his drugstore, and then and there had the license hereto attached, and made a part of this agreed statement of facts, said,license hereto attached having been obtained by the defendant from the board of pharmacy of the state of Missouri, at the date mentioned in the license, hereto attached; that, at the time the defendant made said sale, he did it in good faith, believing he had a right to do so as a druggist and pharmacist, under the*164 license, hereto attached. Said sale of one gallon of lager beer was made on the day mentioned in the indictment.”
The pharmacy license attached to and made a part of said agreed statement of facts is in words and figures following, to-wit:
“Board of Pharmacy for the State' of Missouri, number 2370.
“This is to certify that Wm. B. Piper has applied to this board and approved his qualification to be a registered pharmacist, as provided for by an act of the general assembly entitled £An act to regulate the sale of medicines and poisons by druggists and j)harmacists in the state of Missouri,’ approved the twenty-sixth day of March, A. D. 1881. Issued by James P. Hurt, Ph. G-., Registrar for the Northern District of--. Columbia, Missouri, August 3, 1881.
“ J. A. Howard,
“ J. P. Hurt,
“M. W. Alexander,
“Board of Pharmacy.”
The question here presented is difficult to determine on account of the incongruity of the statutes which apparently, at least, would appear to relate to it. But our conclusion is that defendant ought not to have been convicted. It is true that section 6334, Revised Statutes, 1879 (as amended and as it is now made to read by the Laws of 1887, page 217), declares, broadly, without proviso or exception, that the merchant’s license (which a druggist must have) shall not authorize the sale of intoxicating liquors in any quantity less than five gallons, ' for any purposes whatever. And that section 6338 defines the term, merchant, to include dealers in drugs and medicines. Yet, we have a druggists and pharmacists’ statute prescribing different penalties ahd conditions which we think is designed to cover all the ground in relation to sales by druggists and pharmacists without reference to other statutes. Otherwise we
The law regulating the sale of intoxicating liquors by druggists is found in the druggists and pharmacists’ statute. Laws, 1881, p. 130; Laws, 1883, p. 89; Laws, 1887, p. 182. By section 2, Laws, 1883, page 90, the only inhibition against a druggist selling liquor is that he shall not sell less than one gallon, except upon certain conditions therein set out. The druggist, in this respect, is only amenable to this statute, and he does not violate it when he sells more than one gallon.
Whatever weight can be attached to the revision of 1889, recently promulgated, is to strengthen the foregoing view; for, by sections 6915 and 6919, the merchant’s statute of 1879, as amended by the Laws of 1887, is re-enacted, and, by section 4621 of the pharmacist law, the druggist cannot sell, except upon prescription, any quantity less than four gallons; thus keeping up the distinction between the merchant and the druggist as to the quantity which may be sold by them in their respective capacities.
The judgment will be reversed and the defendant discharged.
