State v. Fairgrieve

Ellison, J. Defendant was indicted as a druggist under section 2, page 90, Acts 1883, for selling liquor contrary to said section. The indictment was quashed by the trial court and the state appeals. The statute is, that no druggist or pharmacist shall “sell, give away, or otherwise dispose of intoxicating liquors,” etc. The indictment charged that defendant “ did unlawfully sell, or give away, and dispose of intoxicating liquors,” etc. Whenever a statute is in the disjunctive, as is this one, the acts should be charged in the conjunctive unless they be repugnant. State v. Fitzsimmons, 30 Mo. 236. In the case of the State v. Pittman, 76 Mo. 56, it was held that the charge, “sell and give away,” were not repugnant, and that it was good pleading to make the charge in the conjunctive. The difference between this case and that, is, that here the additional charge, “ and dispose of,” is made, the law of 1883 having added or included that in the definition of the offence; but, after consideration, we are not able to see how that aids the indictment. The same element of uncertainty remains, as was in the Pittman case, supra. In that case [644] it is said to be fatally bad pleading not to charge in the conjunctive. And we are bound, not only to follow it, but to apply it to all cases falling fairly within the rule it lays down. The state practically concedes the indictment to be bad according to its letter, but insists that the words, “or give away,” or that the word, “sell,” or both, might be rejected as surplusage and there would still be sufficient left to constitute the offence. But so in th & Pittman case, either the word, “sell,” or the words, “or give away,” if the charge there had been in the disjunctive, might have been rejected, and a description of the offence would have remained, but the court nevertheless said it would have been fatal to have charged in the disjunctive. Our conclusion is that the judgment should be affirmed. All concur.