
    The State, Appellant, v. Pittman.
    Pleading, Criminal: selling intoxicating liquors. Where a criminal statute uses disjunctive language in defining an offense, an indictment under it may be drawn in the conjunctive. Thus, a statute made it an offense to “ sell or give away ” intoxicating liquors under certain circumstances. An indictment charged that defendant did "sell and give away” such liquors. Held, that it was not bad for duplicity.
    
      Appeal from Bollinger Circuit Court.—Hon. J. H. Nicholson, Judge.
    Reversed.
    The indictment charged that defendant, being a druggist, did unlawfully “ sell and give away ” intoxicating liquors in less quantities than one gallon, without having a dramshop keeper’s license. It was founded on section 1, page 166, Session Acts 1879, which makes it an offense to “sell or give away,” etc. Defendant demurred to the indictment, as charging two distinct offenses, and being, therefore, bad for duplicity. The demurrer was sustained and final judgment entered for the defendant. The State appealed.
    
      D. H. McIntyre, Attorney General, for the State.
    
      
      Nalle & Edwards for respondent.
   Sherwood, C. J.

The indictment is well enough, and should have been thus held. The gist of the offense with which the defendant was charged, was the unlawful traffic and dealing in spirituous liquors. A violation of the statute under which the indictment is drawn may occur in two ways : First, by a druggist having no license as a dram-shop keeper, selling intoxicating liquor in less quantity than one gallon. Second, by such druggist, being unlicensed as aforesaid, giving away a similar quantity of intoxicating liquor. The statute is in the disjunctive. In such cases, it is allowable to use the word and instead of the disjunctive or. And it is held bad pleading to employ the disjunctive in such cases, and fatal to do so. This is the view taken in State v. Fitzsimmons, 30 Mo. 236, and in the elementary works. State v. Fancher, 71 Mo. 460, and cases cited. Therefore, judgment reversed and cause remanded.

All concur.  