76 Mo. 56 | Mo. | 1882
The indictment is well enough, and should have been thus held. The gist of the offense with which the defendant was charged, was the unlawful traffic and dealing in spirituous liquors. A violation of the statute under which the indictment is drawn may occur in two ways : First, by a druggist having no license as a dram-shop keeper, selling intoxicating liquor in less quantity than one gallon. Second, by such druggist, being unlicensed as aforesaid, giving away a similar quantity of intoxicating liquor. The statute is in the disjunctive. In such cases, it is allowable to use the word and instead of the disjunctive or. And it is held bad pleading to employ the disjunctive in such cases, and fatal to do so. This is the view taken in State v. Fitzsimmons, 30 Mo. 236, and in the elementary works. State v. Fancher, 71 Mo. 460, and cases cited. Therefore, judgment reversed and cause remanded.