State v. Cassity

Rombauer, P. J. The defendant was indicted in Lawrence comity for ^selling liquor as druggist and pharmacist without prescription of a duly registered physician. The indictment contained two counts, one charging the defendant as a druggist, and the other •charging him as a pharmacist, under the provisions of [301] section 4621 of the Revised Statutes of 1889. The punishment in either case is the same, and consists of a fine of not less than $100 nor more than $500. The defendant was convicted in Banry county, to which the cause had been removed by change of venue, the jury bringing in a general verdict of guilty, and assessing his punishment at a fine of $100. The defendant filed his motion in arrest of judgment, alleging as grounds thereof, that the indictment does not charge any offense against the laws of the state, and that the verdict .is insufficient to support a judgment. He now urges these two grounds for reversal of the judgment. ■ The indictment does not in either count state the name of the person to whom the liquor was sold. We held in State v. Martin, 44 Mo. App. 45, that an information against a druggist under section' 4621 of the statutes, which fails to state the name of the person to whom the liquor was sold by him, is subject to be quashed on the defendant’s motion. We held this on the ground that in the case of a sale the druggist must rest his defense, if he has any, upon a prescription or prescriptions issued by a regularly registered physician of the state, and, if the purchaser of the liquor is not named in the indictment, that defense becomes practically unavailable to him. That view was approved by the supreme court, to which we certified the case for its final determination, in an opinion filed February 2, 1892, but not yet .reported. It results from this that an indictment or information against a druggist, which fails to state the name of the purchaser, is bad even after verdict, because the statute of criminal jeofails (R. S. 1889, sec. 4115) expressly provides that nothing therein “shall be so construed as to render valid any indictment which does not fully inform the defendant of the offense of which he stands charged,” and this indictment is fatally defective in failing to do so. The [302] case is not one of variance, bnt one of an omission of ■an essential averment, and such omission has always been held fatal, and not cured either by the evidence or statute. Wheat v. State, 6 Mo. 455; State v. Welch, 28 Mo. 600; State v. Hogan, 31 Mo. 340; State v. Wacker, 16 Mo. App. 417. The motion in arrest should have been sustained. The judgment is reversed and the cause remanded to the trial feourt, with directions to sustain the motion in arrest. The prosecuting attorney of Lawrence county may then proceed, under the provisions of section 4002 of the Revised Statutes of 1889, if so advised. All the .judges concurring, it is so ordered.'