State v. McFalden

BROADDUS, P. J. On the 3d of August, 1908, defendant was arraigned and tried before a justice of the peace in Holt county,.upon an information charging him with having violated the Local Option Law, then in force in the county, in the illegal sale of intoxicating liquor to one Prank Nichols. He was found guilty and he appealed to the circuit court. In the circuit court defendant filed a motion to quash the information on the ground that it charged him with the illegal sale' of intoxicating liquor, but failed to negative the fact, that there is no- town or city in Holt county, containing 2500''or more inhabitants. The court overruled defendant’s motion and he was put upon trial. Prank Nichols, the prosecuting witness, testified as follows: That on the 17th day of July, 1908, and on the 1st day of August, 1908, he gave defendant money with which to< go and buy him (Nichols) whiskey; that defendant acting under his instruction did procure whiskey for him and delivered it to him; that they drank some of it together; and that defendant was a carpenter by trade and at the time he obtained the whiskey for witness was in no way, shape or form engaged or interested in the liquor business. At the close of the state’s evidence defendant asked an instruction in the nature of a demurrer to the testimony on the theory that the state had failed to show any sale by defendant to prosecuting witness. The court refused to so instruct the jury. [483] The defendant testified that he was never at any time engaged or interested in the liquor business and never had any liquor to sell. The jury found defendant guilty and assessed his fine at $500', upon which judgment was rendered and defendant appealed. As the information failed to negative the fact that there was no town or city in the county of Holt, of 2500 or more inhabitants, it is insisted that it was fatally defective. When exceptions occur in a section of a statute defining the offense, it is necessary to negative the exceptions by proper averment, otherwise the court is not informed that any offense has been committed. This is the general rule. And in criminal prosecutions nothing is taken by intendment. [State v. Austin, 113 Mo. 538; State v. Latshaw, 63 Mo. App. 496.] The information can he sustained without violating either of these rules. In the first place the exception, if it may be so called, does not pertain to the offense charged, the unlawful selling of liquor under the Local Option Law. The allegation in the information that the offense was committed in Holt county has reference to the place where the offense is charged to have been committed — the venue. If the venue was incorrectly alleged, that is, if the offense was not committed in the jurisdiction stated, the prosecution would fail. The inforjnation alleges that the Local Option Law had been adopted in Holt county, from which we understand and take judicial cognizance that it was in force in the entire county, because we also take judicial cognizance that there is no town or city in the county containing' 2500 or more inhabitants,, and in doing so nothing is taken by intendment. We believe the evidence shows that the act of defendant in procuring the whiskey for the prosecuting witness in the manner shown, was a violation of the statute. The statute makes it unlawful for any person, “to directly or indirectly sell, give away or barter [484] in any manner whatever, any kind of intoxicating liquor or beverage,” etc. Tbe fact that defendant was. not engaged in tbe business of dealing in liquors but was by trade a carpenter did not exempt him from tbe provision of tbe statute' which includes all persons irrespective of their callings. We find no error in the record, therefore the cause is affirmed. All concur.