State v. Gregory

Richardson, Judge,

delivered the opinion of the court.

The defendant was indicted under the first section of the act concerning dram-shops, which declares that “ no person shall directly or indirectly sell intoxicating liquors in any quantity less than one gallon without taking out a license as a dram-shop keeper. (R. C. 1855, p. 683.) The indictment charges that the defendant, on the 1st of August, 1857, at Laclede county, sold intoxicating liquors, to-wit, one quart of whisky “ without having, any license for that purpose continuing in force during all that time authorizing him so to do,” &c. It was objected, in the motions to quash and in arrest, that the indictment did not sufficiently deny any legal authority to the defendant to sell intoxicating liquors; but we think the right to sell is sufficiently negatived by the averment that the defendant did not have any license for that purpose. The 18th section of the dram-shop law contains an exception to the general prohibition, and permits intoxicating liquors to be sold in any quantity not less than a quart at the place where made, provided that the maker or seller does not permit the same to be drank at the place of sale. The exception is by way of proviso, and need not be noticed in the indictment, but must be insisted on as a defence. (Tracy & Wakrendorff v. State, 3 Mo. 1.) The judgment will be affirmed;

the other judges concurring.