State v. Essman

GOODE, J. This defendant was convicted of selling intoxicating liquor to Lewis Hughes, a minor, without the written permission of said minor’s parents. The testimony tended to prove that Essman himself made the sale. The information is founded on section 3009 of the Revised Statutes of 1899, and was filed by the prosecuting attorney of Crawford county, but not verified by his oath. This is the statute: “Every dramshop keeper, or any other person, who shall sell, give away or otherwise dispose of or suffer the same to be done about his premises, any intoxicating liquors in any quantity to any minor, without the written permission of the parent, master or guardian of such minor first had and obtained, or who shall have in his employ about his dramshop or therein to play at cards, dominos, dice, billiards, pigeon-hole, pool or any other game, without such written permission aforesaid, shall forfeit and pay to such parent, master or guardian, for every such offense, the sum of fifty dollars, to be recovered by the party entitled thereto by civil action in any court of competent jurisdiction against such dramshop keeper, by suit in such court on the bond of such d ramshop keeper, in the name of the county, to the use of the person entitled to sue: provided further that every dramshop keeper who shall violate the provisions of this section, in addition to the civil liability to the parent, master or guardian herein provided for, shall be deemed guilty of a misdemeanor, and be punished by a fine of not less than fifty or more than two hundred dollars; and every action brought by virtue of this section shall be commenced within one year from the time the right of action accrued.” The information shows on its face that it was based — 135 — on the information and belief of tbe prosecuting attorney derived from the affidavit of Nora Hughes. Tbe affidavit reads: “In tbe Circuit Court, February Term, 1904. “State of Missouri, County of Crawford, ss. State of Missouri, Plaintiff, v. Herman Essman and William Stough, Defendants. “Personally appeared before me tbe undersigned judge of tbe probate court within and for Crawford county, Missouri, one Nora Hughes, who being duly ■sworn by me upon oath says that Herman Essman and William Stough, then and there being licensed dram-shop keepers in Steelville, Crawford county, Missouri, at and in tbe said county and State, did on tbe 31st day of January, 1904, unlawfully and wilfully sell, give away and dispose of intoxicating liquors, to-wit: one pint of beer to Lewis Hughes, a minor, under tbe age of twenty-one years, without tbe written permission of tbe parent or guardian of said Lewi$ Hughes first bad and obtained, and against tbe peace and dignity of tbe State. (Signed) “Nora Hughes. “Subscribed and sworn to before me, this 17th day of February, 1904. “Fred J. Smith, “Judge of Probate.” Tbe information charged that Herman Essman and William Stougb, did “unlawfully and wilfully sell, give away and otherwise dispose of or suffer tbe same to be done about their premises, certain intoxicating liquors,” etc. No point is made against tbe validity of tbe information; but tbe affidavit of Nora Hughes on which tbe information was based, is attacked as insufficient because it d'oes not state that tbe accused sold or suffered tbe beer to be sold on their premises. It will be observed that said averment is omitted from the affiidavit, but is — 136 — contained in the information. The contention is. that it was necessary for the affidavit to contain it, too. It should he stated that Stough was acquitted at the trial and Essman (the appellant) convicted. The information was filed in the circuit court under section 2477 of the Revised Statutes of 1899, and the affidavit was filed under the authority of section 2478 (amended in Acts of 1901, p. 139). As the information was not verified by the prosecuting attorney, but was based on the information and belief given him by the affidavit, the fact that the information sufficiently charged the offense will not support the conviction if the affidavit was defective — that is, if it contained a statement of the offense less complete than is required in an informing affidavit. State v. Hayward, 83 Mo. 299; State v. Boggess, 86 Mo. App. 632. Possibly the entire section (3009) against the sale of intoxicating liquors to minors is directed against dramshop keepers ¡’several provisions in it look that way. The last clause of the statute is undoubtedly leveled at dramshop keepers and no one else; for it reads: “Provided, therefore, that every dramshop keeper who shall violate the provisions of this section, in addition to the civil liability to the parent, master or guardian herein provided for, shall be deemed guilty of a misdemeanor and be punished by a fine of not less than $50 or more than $200.” That is the part of the section which created the criminal liability for selling liquor to a minor without permission of the parent, master or guardian. It refers to the previous provisions of the section and says a violation of them by a dramshop keeper shall constitute a misdemeanor. Therefore a dramshop keeper will be guilty of a misdemeanor, as well as civilly liable, if he either personally sells liquor to a minor or suffers it to be sold to one about Ms premises. Two distinct offenses are created by the statute, either of which a dramshop keeper may commit. I incline to the opinion that an indictment or information — 137 — charging a person as dramshop keeper with selling intoxicating liquor to a minor wthout permission of the parent, master or guardian, states an offense under the statute, and that it is unnecessary to allege the act was d'one about the dramshop keeper’s premises, except when he is accused, not of selling himself, but of suffer-a sale. In State v. Young, 73 Mo. App. 602, this court, in construing section 3011, of the Revised Statutes, which prohibits the keeping open of dramshops or the sale of liquors therein on Sunday, held that an indictment against a dramshop keeper for selling intoxicating liquor on Sunday was bad unless it was charged the sale was made on or about his preanises. This point has been decided the other way, either intentionally, or inadvertently. State v. Braun, 83 Mo. 480; State v. Kurtz, 60 Mo. App. 123, 124. But the statute involved in those decisions has a different purpose from the one we are considering. Its purpose is to force the closing of saloons and the cessation of the liquor traffic on Sunday. The essential object to be attained is the decorous observance of that day, free from the disturbance of open dram-shops or the disorderly conduct of drunken men. Another section (2243) suffices to prohibit sales of liquor, as well as other commodities, elsewhere than in a saloon, on Sunday. The object of the statute in hand is to prevent minors from procuring intoxicating drink and the law is directed principally, at least, against dramshop keepers; because a minor is more likely to get intoxicants from them than elsewhere. I think where the dramshop keeper himself makes a sale to a minor, it is sufficient to charge him with being a licensed dramshop keeper and making the sale as such, without saying he did so on or about his premises. But the point for decision is not what is necessary to be stated in an information, but what is necessary in an affidavit by a private person to constitute it a sufficient foundation for an information. An accused person may demand that he be not proceeded against by a — 138 — criminal information until the prosecuting attorney is willing to make affidavit, according to bis information and belief, tbat tbe accused bas committed a crime, or some one else, competent to testify as a witness in tbe case, is willing to do so. This is to protect citizens from prosecutions based on rumors. State v. Hayward, 83 Mo. 299. But a private affiant may make bis affidavit before any person having power to administer an oath, and file it with tbe clerk of tbe court having jurisdiction of tbe offense, for tbe use of tbe prosecuting attorney (sec. 2178). In view of tbe informal manner in wbicb tbe affidavit may be prepared, it cannot be tbe purpose of tbe law to require it to state tbe crime technically, as tbat would 'be beyond tbe capacity of men unlearned in criminal law. Tbe statute says tbe affidavit shall set forth tbe offense. This we understand not to intend tbat tbe affidavit must be as complete and full as an indictment or information; and so tbe cases bold. Tbe purpose of tbe affidavit is to give notice to tbe prosecuting attorney, from one who knows and is competent to swear, tbat a crime bas been committed and who tbe witnesses to prove it are. Tbe purpose of tbe subsequent official information is to apprise tbe accused of tbe offense with wbicb be is charged. Tbe right of tbe accused to challenge the affidavit, as said, is allowed to .keep down prosecutions on rumor and to make tbe affiant in a sense responsible by requiring him (if a private person) to swear of bis own knowledge. It would be a most extreme technicality to bold tbe omission from tbe affidavit in question of a statement tbat tbe defendant sold tbe liquor on bis premises, rendered it necessary to quash tbe information, even if such an averment is necessary in tbe information itself in order to completely charge tbe offense. It was objected tbat secondary evidence of tbe defendant’s license as a dramshop keeper was admitted. Tbe evidence admitted was tbe record of tbe county court showing a license was ordered issued to tbe de — 139 — fenclant and the testimony of the clerk of the court that he issued the license pursuant to' the order. This evidence was received after the State had shown notice to the defendant to produce his original license and failure to comply with the notice. The judgment is affirmed. All concur.