State v. Apperger

Martin, C. The defendant was charged, by information before a justice of the peace, with the offense of unlawfully selling “ intoxicating liquor in less quantity than one gallon, to-wit, one pint of beer without taking out or having a license as a dramshop keeper, or any other legal authority to sell.” On appeal to the circuit court, the case was tried by the court, and the defendant was found guilty and fined $40, from which action of the court he prosecutes his appeal. It appears from the evidence that the defendant was a manufacturer or brewer of beer; that at the time charged, he sold at his brewery a quart of beer for thirty cents, and that it was, after the sale, drank on the premises. The offense charged is not sustained by this evidence. He is charged with selling a pint. The evidence was that he sold a quart. The law in force at the time permitted him, as a manufacturer of intoxicating liquors, to sell in quantities not less than a quart at his brewery. R. S. 1879, § 5459. The same section declares that “ the maker or seller shall not permit or suffer the same to be drank at the place of sale.” This is a distinct offense from the act of selling. And although the evidence is clear enough that he permitted or suffered the beer sold by him to be drank at the place of sale, the information does not charge him with that offense; so that the evidence of it is irrelevant to the issue on trial. There is another fatal error in the proceedings. The bill of exceptions, which purports to contain all the evidence at the trial, fails to show that the offense charged was committed in Jasper county, State of Missouri. The judgment is reversed. All concur.