State v. Arbogast

RylaND, Judge, delivered tbe opinion of tbe court. Michael Arbogast was indicted by the grand jury of Grundy county, at tbe Circuit Court, at tbe April term, 1855, for selling intoxicating liquors without license. Tbe defendant appeared and moved to quash tbe indictment. His motion was sustained, and tbe indictment quashed. Tbe circuit attorney excepted to ' tbe decision of tbe court, and filed bis bill of exceptions, and brings tbe case here by writ of error. Tbe question then before us involves tbe sufficiency of tbe indictment, which is in substance as follows: Tbe grand jurors of tbe State of Missouri, for tbe body of Grundy county, duly impannelled, sworn and charged, upon their oath present, that Michael Arbogast, late, &c., on &c., at, &c., aforesaid unlawfully, did directly sell intoxicating liquors in a quantity than one quart, to-wit, one-half pint of whisky, of the value of ten cents, and one-half pint of brandy, of tbe value of ten cents, to one Thomas W. Cooper and divers others persons, then and there being, without tbe said Michael Arbogast then and there first taking out and having a license as a dram-shop keeper, according to law or any other lawful authority, contrary, &c. [364] The indictment is drawn carelessly, and without precision; the pleader intended, no doubt, to place the word “ less” between the words “ quantity” and “ than ;” but his failing to do so does not necessarily render the indictment deficient. Here the averment as to quantity under the videlicet — the “ to - writ” — is material, and the State will be held to proof of the fact as alleged; and thus understood, the indictment in substance charges the defendant with selling a half pint of prohibited liquor without a license, and this is sufficient. The averment “ without talcing out and having a license as a dram-shop keeper, according to law or any other lawful authority,” we consider sufficient to negative the idea of the defendant’s having any license of any kind authorizing him to sell intoxicating liquors. In this indictment the averment as to the quantity sold, though coming after the “to-wit,”is to be considered material, and the State must prove the quantity as laid, and without such proof there would be a variance between the charge and proof, and the defendant would be entitled to his acquittal. The general rule in relation to allegations under a videlicet or scilicet seems to be this : if they be impossible or contrary or repugnant to the preceding matter, they shall be rejected as surplusage and void. But when they are used to explain what goes before them, and are consistent with the preceding matter, then they are material and traversable. “It is the office of a videlicet,” says L’d Hobart, in Stukely v. Butler, Hob. 172, “ to particularize that which before is general, or distribute that which is gross, or explain that which is doubtful or obscure.” (Gleason & Gleason v. McVicker, 7 Cow. 42; Knight v. Preston, 2 Wilson, 335; 2 Saunders, 291, a.) “ It is clear that when the matter alleged is material and traversable, and must be stated with exactness and certainty, the statement of such matter under a videlicet will not avoid the consequences of a variance or repugnancy if the matter be misstated, and there would be a fatal variance in the absence of the videlicet; and this, whether the matter be the consideration or promise in the case of a contract, or be time or place when material, or relate [365] to other subjects.” (Note to 7 Cow. 45; 1 Sand. 170, n. 2; 2 Saund. 290; 1 Chitty C. L. 324; 1 Chitty’s Prac. 317.) It is material to aver some quantity sold, and generally speaking the quantity is so laid in the indictment that proof is not required of the exact amount, viz., in a quantity less than ten gallons, to-wit, one quart or one pint. But here the quantity is not charged to be less than one quart, to-wit, one-half pint, but is charged to be one-half pint, and, although charged under the “ to-wit,” is a positive affirmative charge, material and traversable, and must be proved as laid. A videlicet will not avoid a variance in an allegation of material matter; neither should the omission of it create the necessity of proving precisely a stated matter, which would not otherwise require such precise proof. The indictment in this case is good, and the court below erred in quashing it. The judgment is reversed, and the cause remanded ; the other judges concurring.