
    State of Missouri, Respondent, v. Emanuel Brosius et al., Appellants.
    1. Criminal Practice — Evidence — Instructions.—Where the evidence offered- is not sufficient to sustain the indictment, it is the duty of the court so to instruct the jury.
    2. Criminal Practice — Dram-shops—Evidence.—Under an indictment for selling liquors without having a dram-shop licence, it must be proved that the liquors were sold in less quantities than one gallon and for the purpose of being drunk on the premises.
    
      Appeal from Daviess Circuit Court.
    
    
      Tories & Tories, for appellants.
    
      James Jones, for respondent.
   Holmes, Judge,

delivered the opinion of the court.

The defendants were indicted for selling vinous, fermented and spirituous liquors as merchants in less quantity than one gallon, and permitting the same to be drunk at their stand, store, and place of business, without having a dram-shop keeper’s licence. The evidence tended to show that such liquors had been sold at their store, but wholly failed to show that they were sold in quantities less than one gallon, or that they were permitted to be drunk at or in the store. It was proved that liquors which had been purchased of the defendants had been drunk in a gunsmith’s shop adjoining the store, and in a vacant lot or yard in the rear of the building in which the defendants kept their store.

The defendants’ instructions to the effect that this evidence was not sufficient to support the indictment was refused. We think they should have been given. There was no evidence whatever that'the defendants had sold liquor in less quantity than one gallon, nor that they had permitted them to be drunk in their store.

Reversed and remanded.

The other judges concur.  