
    The State v. Apperger, Appellant.
    
    Intoxicating Liquor: ikpokmation : vahiakce. Under Bevised Statutes 1879, section 5459, permitting the maker of intoxicating liquor to sell the -same, at the place where made, in quantities not less than one quart, but forbidding him to suffer the same to be drunk on the premises where sold, a conviction upon an information charging the sale of one pint without having a license as a dramshop keeper, is not sustained by proof of the sale of a quart, by the maker, at the place where made, and suffering the same to be drunk thereat. Suffering the liquor to be drunk at the place of sale is a distinct offense from the act of selling.
    2. Venue. “Where the bill of exceptions purports to preserve all the evidence, and fails to show that the offense -was committed in the county charged in the information, the judgment will be reversed.
    
      Appeal from Jasper Circuit Court. — Hon. M. G. McGregor, Judge.
    Reversed.
    
      C. H. Montgomery for appellant.
    There was no testimony introduced showing that the offense was committed in the county of Jasper or in the State of Missouri. The court is referred to a uniform line of decisions of this court.
    
      D. H. McIntyre, Attorney General, for the State.
    Section 5459, Revised Statutes, (in force at the time of this prosecution,) gives to manufacturers of intoxicating liquors the right to sell at the place where made in quantities not less than one quart, but expressly prohibits the drinking of liquor so sold on the premises where, made. There are two offenses created by the above cited section : first, that of selling at the place where made in less quantities than one quart, and, second, selling in any quantity and allowing the same to be drunk on the premises. It would be better pleading in charging the last offense, to charge it in the language of the statute. But where the proof shows a sale by a manufacturer, and that he allowed the liquor to be drunk on the premises, it makes it an unlawful sale, and it is sufficient, to charge it as a sale of intoxicating liquor without having a dramshop or any other license.
   Martin, C.

The defendant was charged, by information before a justice of the peace, with the offense of unlawfully selling “ intoxicating liquor in less quantity than one gallon, to-wit, one pint of beer without taking out or having a license as a dramshop keeper, or any other legal authority to sell.” On appeal to the circuit court, the case was tried by the court, and the defendant was found guilty and fined $40, from which action of the court he prosecutes his appeal.

It appears from the evidence that the defendant was a manufacturer or brewer of beer; that at the time charged, he sold at his brewery a quart of beer for thirty cents, and that it was, after the sale, drank on the premises. The offense charged is not sustained by this evidence. He is charged with selling a pint. The evidence was that he sold a quart. The law in force at the time permitted him, as a manufacturer of intoxicating liquors, to sell in quantities not less than a quart at his brewery. R. S. 1879, § 5459. The same section declares that “ the maker or seller shall not permit or suffer the same to be drank at the place of sale.” This is a distinct offense from the act of selling. And although the evidence is clear enough that he permitted or suffered the beer sold by him to be drank at the place of sale, the information does not charge him with that offense; so that the evidence of it is irrelevant to the issue on trial. There is another fatal error in the proceedings.

The bill of exceptions, which purports to contain all the evidence at the trial, fails to show that the offense charged was committed in Jasper county, State of Missouri. The judgment is reversed.

All concur.  