
    THE STATE v. WILLIAM QUINN, Appellant.
    Division Two,
    November 18, 1902.
    1. Selling Intoxicants: Merchant’s license: prosecution. The defendant had a merchant’s license authorizing him to vend goods, wares and merchandise, including intoxicating liquors in quantities not less than five gallons. Held, that for selling one-half pint of whiskey he could be prosecuted under either the dramshop act or the merchant’s act, and that it was optional with the prosecuting attorney under which act he would prosecute him. (Overruling State v. Alexander, 73 Mo. App. 605, and State v. Steele, 84 Mo. App. 318.)
    2. -: -: INCLUSIVENESS OE dramshop ACT. The dramshop act provides that no person shall directly or indirectly sell intoxicating liquors in any quantity less than three gallons without taking out a license as a dramshop-keéper. This act is so broad that a merchant who has a merchant’s license but no dramshop license, may be prosecuted under the merchant’s act for selling intoxicating liquors in any quantity less than five gallons, or under the dramshop act for selling it' in any quantity less than three gallons, at the option of the State.
    3. Selling Liquor Unlawful: authority to be shown: license a defense : pleadins. The sale of intoxicating liquor being unlawful, some statutory authority to make the sale must be shown to remove the criminal element from the sale. Therefore, when an information is presented charging a sale to be in violation of the dramshop act, and evidence is adduced by the State tending to prove such sale, the license of the defendant, if he has one, whether it be as a druggist, pharmacist, merchant or as a dramshop-keeper, is a matter of defense, and not a matter to be pleaded in advance by the State in the information or indictment.
    Transferred from. St. Louis Court of Appeals.
    COURT OK APPEALS JUDGMENT AEEIEMED.
    
      L. D. Grove and R. H. Stanley for appellant.
    (1) At the time the informations were filed, no jurisdiction attached to try defendant, because unverified. State v. Bragg, 63 Mo. App. 27; State v. Saymon,-61 Mo. App. 244; R. S. 1899, sec. 2477. (2) Defendant, being a merchant, could not he convicted under the dramshop act. State v. Alexander, 73 Mo. App. 606; Knox City v. Whittaker, 87 Mo. App. 472; State v. Witty, 74 Mo. App. 551; State v. Steele, 84 Mo. App. 318. (3) There plainly being collusion between the prosecuting attorney and prosecuting witnesses to procure defendant to violate the law, the State has no reason to complain, and defendant should he discharged.
    
      David W. Hill for the State.
    (1) Upon the filing of the informations and the verifications thereof by the prosecuting attorney with the clerk of the circuit court, in vacation, they become records of the court, and the prosecuting attorney had the right to file them with the clerk at any time in vacation without leave of court. Secs. 2477, 2478, 2480, R. S. 1899; State v. Pfenninger, 76 Mo. App. 313. (2) The ■trial court properly refused the “collusion instruction” offered by defendant. 1 Bishop’s New Crim. Law, pp. 401, 402; Isbell v. State, 13 Mo. 86; State v. Keith, 46 Mo. App. 525; Hays v. State, 13 Mo. 246; State v. Bryant, 14 Mo. 340. (3) A defendant on trial for selling liquors without a license, who fails to show that he has a license, is presumed to have none, and the burden of showing that he has such license rests upon him. State’ v. Durken, 23 Mo. App. 387. It will be presumed by this court that the trial court found the fact to he that defendant did not have a merchant’s license. Schell v. Leland, 45 Mo. 289.
   BURG-ESS, J.

This case is certified to this court by the St. Louis Court of Appeals on account of the decision being in conflict with State v. Alexander, 73 Mo. App. 605, and State v. Steele, 84 Mo. App. 318.

The opinion of the Court of Appeals is as follows:

‘ ‘ On May 1, 1901, the prosecuting attorney of Butler county filed, in the circuit clerk’s office of .sáid county, four informations against the defendant, charging him with four separate violations of the dramshop act. At the June, 1901, term of the Butler Circuit Court the issues were made up on the four informations and by agreement they were all submitted to the court, sitting as a jury, at one time and were all heard at the same time.
“The evidence on the part of the State tends to show that defendant sold one-half pint of whiskey at different times and to the several persons named in the several informations. On.cross-examination it was developed that the prosecuting witnesses, who bought the whiskey, were furnished money by the citizens with which to buy it under an understanding that the purchases were to be made with the view to furnishing evidence for these prosecutions.
‘ ‘ On the part of the defendant, it was shown that he was the son of L. F. Quinn and that L. F. Quinn and son had a state and county license authorizing them to vend goods, wares and merchandise for the period of one year beginning on November 15, 1900.
“The defendant asked the following declaration of law:
“ ‘The’court declares the law to be that if the defendant was a merchant and had^a merchant’s license, lie is not guilty of a violation of the dramshop law as charged in this information, provided said merchant’s license covered the time of the offense as alleged in the counts of this information, ’ which the court refused to give.
“The court sitting as a jury found the defendant guilty on all four of the informations, assessed his punishment at a fine of two hundred dollars on each one and rendered four separate judgments, for the fines so assessed. Timely motions for new trial and in arrest of judgment were filed by the defendant which the court overruled and defendant appealed.
“I. As in the Patton and Lucas cases (decided at this term) defendant, on the hearing of his motion in arrest of the judgment, offered to prove hy parol evidence that the informations were not verified on the dates they purported to he, hut at a later date and after the warrants had been issued and served on the defendant. This evidence was correctly rejected hy the court. [State v. Patton, 94 Mo. App. 32.]
“II. As in the Lucas case defendant contends that the court should have dismissed the cases on the showing that the prosecuting witnesses were furnished money to huy whiskey of the defendant for the purpose of making cases against him. This contention was ruled adversely to the defendant in State v. Lucas, 94 Mo. App. 117, and need not be further noticed here.
“III. The undisputed evidence is that the defendant had a merchant’s license authorizing him to vend goods, wares and merchandise, including intoxicating liquors in quantities not less than five gallons, when the several sales charged in the informations were made hy him, and it is contended that he should have been proceeded against for violations of the law in respect to the sale of intoxicating liquors hy merchants and that he was not amenable to the dramshop act. In State v. Alexander, 73 Mo. App. 605, it was held hy this court that a merchant having a license was not amenable to the dramshop act. The same ruling was made in the town of Knox City v. Whiteaker, 87 Mo. App. 468. In the Alexander case the court contented ih self by a reference to the section of the statute pro-habiting merchants from selling intoxicating liqnors in less quantities than five gallons. In the Whiteaker case the court took the position that the Legislature had singled out druggists and merchants as a particular class and conferred upon them the privilege of selling intoxicating liquors under special statutory provisions and on this assumption held that they could only violate the law under which they were specially licensed, citing State v. Witty, 74 Mo. App. 550; State v. Williams, 69 Mo. App. 284; State v. Piper, 41 Mo. App. 160, cases in which the act pertaining to the sale of liquors by druggists was discussed and which support the class idea. Beginning with State v. Piper, supra, there is an unbroken line of decisions by both this court and the Kansas City Court of Appeals to the effect that the design of the druggists’ and pharmacists ’ act is to cover all the ground in relation to the sale of liquor by druggists and pharmacists without reference to any other statute, and that a licensed-druggist or pharmacist can only be prosecuted on account of an unlawful sale of liquor under the drug act. We have never been favorably impressed with the logic of the opinion in the Piper case and have not been converted to its soundness by the additional reasoning in some of the cases that have followed it, in which it is said that one of the reasons why a licensed druggist and pharmacist should not be prosecuted under the dramshop act is that the prescription of the physician affords him an absolute defense and that he is entitled to be informed by the information or indictment of the name of the person to whom it is charged he made the illegal sale to afford him, if he has one-, time and opportunity to hunt out the prescription from his files and offer it as evidence in his defense. This reasoning loses all of its force in view of the statute which requires the name of every state witness to be indorsed on the information or indictment and makes a failure to so indorse them ground for quashing the information. Neither druggists nor merchants are expressly excepted from the provisions of the dramshop act and their immunity, if it' exists, must be inferred from some incongruity or clash between the different acts. Such incongruity or clash we have failed to discover.
‘ ‘ There is a difference in the penalties fixed by law for the violation of these acts but it is greater for violation of the merchants’ and druggists’ act than for the violation of the dramshop act, but the merchant or druggist, if prosecuted under the dramshop act could not be heard to complain that he was not prosecuted under an act with a greater penalty than the one under which he was being prosecuted.
“The dramshop act is very broad. It provides that no person shall directly or indirectly sell intoxicating liquors in any' quantity less than three gallons either at retail or in the original package without taking out a license as a dramshop-keeper. [Sec. 2991, R. S. 1899.] A druggist may riot sell in any quantity exceeding four gallons. [Sec. 3047, R. S. 1899.] A merchant may not sell less than five gallons. [Sec. 8563, R. S. 1899.] Suppose a merchant makes a sale of less than five gallons, he not only violates the merchant’s but he, at the same time, violates the dramshop act, if he has no license as á dramshop-keeper, and it seems to us that the State ought to have the right to elect under which one of the two acts it will proceed. And suppose a registered druggist makes a sale exceeding four gallons, would not the sale be a violation of both the drug and dramshop act, and here again should not the State have the option to prosecute under either act; or suppose he should sell less than four gallons, without the prescription of a physician, not to be used for mechanical or scientific purposes, would he not be guilty of a violation of both the drug and dramshop act and upon what principle of law or logic is the State prohibited from .electing under which of the two' violated statutes it will proceed?
“In State v. Moore, 107 Mo, 80, Moore was prosecuted for a violation of the local option law then in force in the county of Mercer, where he was indicted. He proved that he was a registered and licensed druggist and the proprietor of a drugstore and contended that he should have been indicted as a druggist; that he belonged to a special class set apart by the Legislature to dispense intoxicating liquors. The Supreme Court in Banc through the lamented Macfarlane, J., said 'No’ to this contention, and that if the defendant had the prescription of a physician calling for the liquor he sold he could produce it and it would be a complete defense to the indictment. If this is good law why may not a druggist or merchant be prosecuted for a violation of the dramshop act and why may he not, in his defense, -if he has it, show that he was privileged by virtue of his license and occupation to make the sale. In State v. Goff, 66 Mo. App. 491, it was held that one indicted-for a violation of the dramshop act, who, the evidence showed, conducted a drugstore under a merchant’s license, might be convicted for a violation of the dramshop act.
“It is a general rule of criminal procedure that if one is indicted under one section of a statute and the evidence shows that he is not guilty of a violation of that section but is guilty of the violation of another section, he may be convicted of a violation under the section of which the evidence shows him guilty, provided the indictment is broad enough to include the offense within its allegation. [State v. Heckler, 81 Mo. 417; State v. Kurtz, 64 Mo. App. 123.]. And we see no valid reason why one who is informed against for a violation of the merchants’ act or the druggists’ act, in respect to the sale of intoxicating liquor, may not be convicted of a violation of the latter act but not guilty of a violation under the statute on which the information is founded. The gravamen of the offense under the several acts is in making a sale without a license authorizing the same as made, and when the evidence shows an illegal sale to have been made it seems to us that the mere occupation of defendant as a merchant or as a druggist should not exculpate him from the criminal consequences of his act, nor are we able to perceive why it is that-where, as in the case of a merchant or druggist, who makes an illegal sale of intoxicating liquors violative of both the dramshop act and the act under which he is carrying on his business, the prosecuting attorney, as in other criminal cases, has not the right to carve out of the transaction any crime embraced within it. [1 Bishop on Criminal Law, sec. 791; Bishop on Criminal Statutes, sec. 1027, State v. Heinze, 45 Mo. App. 403.]
“The sale of intoxicating liquors being unlawful (Austin v. State, 10 Mo. 591) some statutory authority must be shown authorizing a sale to remove the criminal element from the transaction, and it seems to us that, whenever an information is presented charging a sale in violation of the dramshop act and evidence is adduced by the State tending to prove the sale, the license of the defendant, if he has one, whether it be as a druggist, pharmacist, merchant, or dramshop-keeper, is a matter of defense and not a matter to be pleaded in advance by the State in the information or indictment.
“Our conclusion is that State v. Piper, supra, with all of its brood is opposed to the decision of the Supreme Court in State v. Moore, supra, and should no longer be followed. The defendant was rightfully convicted under the dramshop act, notwithstanding his merchant’s license and the judgment is affirmed. As the result reached is opposed to State v. Alexander, 73 Mo. App. 605, and State v. Steele, 84 Mo. App. 318, the cause is certified to the Supreme Court for final disposition.”

The opinion of the St. Louis Court of Appeals by Bland, P. J., in which the other judges concur, is adopted as the opinion of this court, being, as we think, supported by reason and the weight of authority.

All concur.  