State v. Shortell

93 Mo. 123 | Mo. | 1887

Norton, C. J.

This is a prosecution, instituted before a justice of the peace of Nodaway county, in which the defendant is charged, as a dram-shop keeper, with selling intoxicating liquors to one Kelly, an habitual •drunkard, after he had been notified by the wife of said Kelly not to give, furnish, or sell to said Kelly .any intoxicating liquors. He was tried before the justice and convicted, and, on his appeal to the circuit court of Nodaway county, was again tried, convicted, and fin§d forty dollars, and from this judgment of conviction has' appealed to this court. But for the fact that defendant contends that section 5462, Revised Statutes, on which the prosecution is based, is unconstitutional, we could not entertain jurisdiction of the cause on his appeal.

It is claimed that said section authorizes the conviction of a dram-shop keeper for the offence specified therein, for the acts of his agents, even though they exceed their authority and the express direction of such dram-shop keeper. The claim thus made is not well founded, because the said section does not authorize the conviction of a dram-shop keeper for the acts of his agent, done in violation of his directions, and without his consent, as will sufficiently appear by the section, so' much of which as is necessary to be quoted is as follows: ‘‘Any dram-shop keeper, druggist, or merchant selling, giving away, or otherwise disposing of, any intoxicating liquor to any habitual drunkard, after such dram-shop keeper, druggist, or merchant shall have been notified by the wife, father, mother, brother, sister, or guardian of such person not to sell, give away, or furnish to such person any intoxicating liquors, shall be deemed guilty of a misdemeanor,” etc.

There is, however, a fatal objection to the prosecution. By section 12, article 2, of the constitution, it is provided ‘£ that no person shall, for felony, be proceeded against criminally otherwise than by indictment. * * * In all other cases, offences shall be prosecuted criminally, by indictment or information, as concurrent remedies.” In the case of State v. Kelm, 79 Mo. 515, in construing the word information, as it occurs in said section, it was held to mean a prosecution instituted by some officer whose duty it was to prosecute criminal offences ; and it was further held that the affidavit of a private individual was not an information, and would not support a criminal prosecution. On the authority of that case, the prosecution in this case must fail, inasmuch as it was instituted, not by an officer, but on the affidavit of a private person.

Judgment reversed.

All concur.