62 Mo. App. 101 | Mo. Ct. App. | 1895
The information charges the defendant with a violation of the dramshop law. He was convicted both before the justice of the peace and in the circuit court. The evidence for the state tended to prove a sale of two quarts of beer to one William Stewart in June, 1893, and that the sales were made by'the defendant at Wombles’ drug store in the town of Troy, in Lincoln county. It was undisputed that Wombles was a licensed druggist, that he owned the drug store, and that the defendant was conducting it for him. It appeared from the certificate of the State Board of Pharmacy, which the defendant read in evidence, that he was a duly registered pharmacist. He also showed by the certificate of the State Board of Health that he was a graduate in medicine, and was authorized to pursue the practice of medicine in this state. He also read in evidence two prescriptions for the beer sold by him to Stewart. The certificates were issued by himself. At the conclusion of the evidence the defendant asked, the court to direct an acquittal. The court refused, and the defendant excepted and still excepts.
In refusing the instruction asked, the circuit court-was governed, doubtless, by the cases of State v. Moore, 107 Mo. 78, and State v. Searcy, 46 Mo. App.421, which, hold that, where the defense to an indictment for a violation of the dramshop law is that the intoxicant was sold by
In the present case the evidence for the state shows that the sale was made at Wombles’ drug store, and that the defendant was in charge of it. The authenticity or genuineness of the defendant’s certificate from the State Board of Pharmacy is not questioned. Therefore, we are of the opinion that the instruction asked by the defendant ought to have been given..
The judgment of the. circuit court must be reversed, and the defendant discharged.