State v. Seiberling, 143 Mo. App. 318

143 Mo. App. 318 | Mo. Ct. App. | 1910

NIXON, P. J.

Defendant was indicted by tbe grand jury of I-Iowell county at the February term, 1907, for unlawfully disposing of intoxicating liquor to a minor. Appellant was a dramshop keeper and was indicted as such; but before the trial, to-wit, on January 31, 1907, an election was held in Howell county to determine whether the sale of intoxicating liquors in said county should be prohibited under the Local Option Law, and as the vote was in favor of local option, the statute against the sale of liquor in the county went into effect March 16, 1907, after the adoption of the Local Option Law in the county.

It is urged by appellant that the occurrence of the local option election prior to the trial sufficed to prevent a conviction, because the dramshop act under which defendant was tried was not in force in the county at the time of the trial. The case of State v. Patrick & Boyd, 65 Mo. App. 653, cited by appellant, would amply sustain his position; but the St. Louis Court of Appeals in the case of State v. Walker, 129 Mo. App. 371, 108 S. W. 615, expressly refused to follow that case, and because of the conflict, certified the case to the Supreme Court. The opinion of the Supreme Court is reported in 221 Mo. 511, 120 S. W. 1198, wherein the opinion of the St. Louis Court of Appeals is approved and adopted as the opinion of the Supreme Court. That case and the one at bar are identical. The Kansas City Court of Appeals has also accepted this view of the law in a late case. [State v. Tullar, 138 Mo. App. 349, 122 S. W. 313.]

The opinion of the St. Louis Court of Appeals in the case of State v. Walker, supra, is adopted m toto as the opinion of this court in this case as covering points 2, 4, 5 and 6 made by appellant.

It is also contended by appellant that the omission of the words “then and there” in the conclusion of the indictment and in the clause charging the age of the minor is fatal. This point is made on the ground that nothing material in an indictment will be taken by intendment. The words “then and there” are simply words of reference, used for convenience to avoid repeating time and again the place and time of the commission of the offense, but which in this case are sufficiently charged at the beginning of the indictment. [Boble v. People (Ill.), 50 N. E. 322.] And in cases of minor offenses like the present, the same nicety is not required in drawing indictments as is required in charging common-law felonies.

Appellant further contends that because the minor to whom the liquor was sold was married and the head of a household, the rights of his parents over him had ceased and that therefore he should be regarded as an adult. In support of this contention, appellant stated that the reason of the law in regard to sales of liquor to minors is that the law seeks to protect the parent of said minor. Whatever may be the purpose of the first part of section 3009, Revised Statutes 1899, creating a civil liability in favor of the parent, the latter part, making a sale of liquor to a minor a misdemeanor and providing a fine therefor is most positive in its terms, and we have been referred to no case which in any way sustains appellant’s contention and revolutionizes the law as to who and who is not a minor. Section 3177, Revised Statutes 1899, provides: “Males of the age of twenty-one 'years, and females of the age of eighteen years, shall be considered of full age for all purposes, except as otherwise provided by law, and until those ages are attained, they shall be considered minors.” It is nowhere made the prerogative of a married minor that a dramshop keeper may sell him intoxicating liquor; and if we were at liberty to examine the reasons of the law, we might well conclude that the marriage of a minor is an additional reason why he should be denied the right to purchase intoxicating liquors at a dramshop.

We find no error in this record. The judgment is affirmed.

All concur.