
    The State Appellant, v. Jaques.
    1. Selling Liquor without License. An indictment for selling liquor without a license, need not state the name of the person to whom or the place at which the sale was made. State v. Spain, 29 Mo. 415, and other cases.
    2. -: druggist: criminal pleading. An indictment under Wag. Stat. of 1872, sec. 2, p. 549, for selling liquor without license, need not negative the existence of those facts, which by the act of 1874 (Sess. Acts, p. 46)' authorize a druggist to sell without a license. If the defendant ivas a druggist', and as such, authorized to make the sale for medicinal purposes, that was matter of defense. It is never necessary in an indictment under a statute to negative the exceptions contained in a subsequent statute.
    
      Appeal from Bollinger Circuit Court. — Hon. J. B. Robinson. Judge.
    This was indictment charging the defendant witli having unlawfully and directly sold intoxicating liquors in less quantities than one gallon, to-wit: one pint of whisky, without having taken out a license as a dramshop keeper, and without having any legal authority to make such sale, against the provision of the statute, &c. To this indictment a demurrer was interposed, alleging as grounds of objection that it was founded on section 1, page 46, Acts 1874, and did not negative the fact that the liquor was sold for medicinal purposes upon the written prescription or certificate of a regular, practicing physician, and that it did not give the name of the person to whom it was sold, nor state the place where it was sold. The demurrer was sustained and judgment was rendered for the defendant, from which the State appealed.
    
      J. L. Smith, Attorney-General, and J. H. Willson for the State.
    
      Madison R. Smith for respondent.
   Henry, J.

The objectio'ns to the indictment, that it does not allege to whom or at what place the liquor was so^’are met ky the cases of the State v. Spain, 29 Mo. 415; State v. Ladd, 15 Mo. 432; State v. Fanning, 38 Mo. 359; State v. Melton, 38 Mo. 369, in which it was held that those allegations are not indispensable to a good indictment. The State v. Neales, 10 Mo. 500, and Austin v. The State, 10 Mo. 591, to the contrary, have long since been overruled.

The only remaining question is, whether the indictment is defective in failing to negative the existence of those facts, which, by the act of March 26th, ' . ° . 1874, authorized a druggist to sell intoxicating liquors in less quantities than one gallon. The second section of the General Statutes, (Wag. Stat., § 2, p. 549,) in relation to dramshops, prohibits every person from selling intoxicating liquors in any quantity less than one gallon, without taking out a license as a dramshop keeper. The act of 1874 makes exceptions to the general law. The indictment is drawn under the second' section of the act in relation to dramshops, and not under the act of 1874. How was the court to know that defendant was a druggist ? He was not indicted as such, and if he sold the liquor as a druggist, under circumstances which authorized the sale, that was a matter of defense. It was expressly averred that he had not taken out a license as a dramshop keeper, and had no legal authority whatever to sell. This has been repeatedly held a sufficient negation of any special or general authority to sell, other than that expressly negatived. Austin v. The State, 10 Mo. 591; State v. McBride, 64 Mo. 365, and cases supra. The exceptions or provisos contained in the same act need not be negatived, unless named in the section creating the offense. State v. O'Gorman, ante, p. 179, and authoi’ities there cited. The same doctrine applies where the exceptions are contained in a subsequent act. There is no foundation for the position that the second section of the act in relation to dramshops was repealed by the act of 1874. The demurrer to the indictment should have been overruled, and the judgment is reversed and the cause remanded.

All concur.

Reversed.  