State v. Stephens, 62 Mo. App. 232

62 Mo. App. 232 | Mo. Ct. App. | 1895

Smith, P. J.

The second section of the act to regulate the sale of intoxicating liquors in original packages, or otherwise, approved April 20,1891 (Sess. Acts,. 1891, p. 128), provides: “No person shall directly or indirectly sell intoxicating liquors in any quantity less than three gallons, either at retail or in the original package, without taking out a license as a dramshop keeper.”

The indictment contained in the record before us •charges that the defendant, on, etc., at, etc., did sell to a person to these jurors unknown, intoxicating liquors in certain quantities less than one gallon, to wit, one pint of whiskey, etc.

The question now is, does the indictment state facts constituting a public offense. If it does, the circuit court erred in sustaining the defendant’s motion to quash it.

The rule of criminal pleading is that the offense-must be substantially charged as set out in the statute; it need not be in the exact words, but those used must be of equivalent meaning. State v. Barr, 30 Mo. App. 500; State v. Effinger, 44 Mo. App. 83. The statute, as-we have already seen, makes it an offense to sell intoxicating liquors in any quantity less than three gallons. But the defendant is charged in the indictment to have-sold intoxicating liquors in certain quantities less than one gallon. According to the ruling in State v. Baskett, 52 Mo. App. 389, and in State v. Fanning, 38 Mo. 409, this departure in the charge from the statute was fata! to the indictment.

It results that the judgment of the circuit court, must be affirmed.

All concur.