The indictment alleged that defendants then and there “being merchants and having a merchant’s license, for dealing in goods, wares and merchandise, did then and there unlawfully sell fermented liquors in less quantity than five gallons, to-wit: one -pint of beer, one pint of fermented liquor called ‘Hop Tea,’ they, the said G. Stock and H. A. Stock, then and there, not having a dramshop-keeper’s license or any other authority therefor, against,” etc.
I. The sufficiency of the said indictment is questioned by the defendants on the ground that it is nowhere 'therein charged that they dealt in goods, wares and merchandise. The indictment alleges- that the defendants were merchants. Every person or co-partnership of persons who shall deal in selling goods, wares and merchandise, etc., is declared to be a merchant (sec. 8540; R. S.). A merchant, under other sections of the statute, is required to give bond and obtain a license to carry on his business. Section 8563 de*68dares that no snch license shall authorize any merchant to sell any vinous,' fermented or spiritous liquors in any quantity less than five gallons, for any purpose whatever. The allegation, therefore, that the defendants were merchants, was a sufficient allegation of the fact that they dealt in — or were dealers in .goods, wares and merchandise.
As the statutory prohibition (sec. 8563, R. S. 1899) is directed against merchants as such, and the minimum quantity they may sell being five gallons, with a special penalty distinct from that attached to other offenders, the indictment should indicate on its face that the party charged is a merchant as defined by statute. State v. Runyan, 26 Mo. 167; State v. Ryan, 30 Mo. App. 159. But if the indictment did not, on its face, sufficiently allege that the defendants were merchants, still as this fact was well proved at the trial, under State v. Shafer, 82 Mo. App. 58, the defective allegation, if such it was, was thereby- aided.
II. The defendants further assail the indictment on the ground that it does not therein allege whether the defendants were licensed as individuals or as “a co-partnership of persons.” It seems to us that no such an allegation is required in order to charge an offense against the statute (section 8563). If the defendants were carrying on the business of merchants under their license, and while so doing they made a sale of vinous, fermented or spiritous liquor in a less quantity than five gallons, it is difficult to see why they did not offend against the statute whether their license was to them' as partners or jointly to them without specifying their relation inter se. It is for the abuse of the privilege conferred by the license that the statute intends to punish.
It is admitted that the defendants made the joint sale as alleged, in the indictment, so that the evidence was ample to justify the verdict of the jury.
But it is contended that the evidence went further *69and showed that each of the defendants made sales when the other was away, and that snch evidence did not, of itself, authorize a conviction under the indictment. It is a sufficient answer to this contention to say that if evidence of separate sales was introduced without objections, it is now too late to object to it even if it was improper.
Even if evidence of separate sales was received, it would seem that under the ruling made in State v. Edwards, 60 Mo. 490, it would have been sufficient, if there had been no other evidence, in a case like this, to uphold the conviction under the joint indictment. The defendants are each admittedly guilty, and could have been convicted under separate indictments..
We are not of the opinion that the omission of the court sua sponte to instruct the jury that if they found the defendants made separate sales, that they should be acquitted, was error, or if so, it was not harmful to defendants on the. merits. State v. Stubblefield, 32 Mo. 563; State v. Duclos, 35 Mo. 237; State v. Willis, 37 Mo. 192; State v. Edwards, ante.
The defendants were fairly tried and convicted, and accordingly the judgment will be affirmed.
All concur.