
    State of Missouri, Respondent, v. Thomas E. Alexander, Appellant.
    St. Louis Court of Appeals,
    February 15, 1898.
    Criminal Law: sale or liquor by merchant and druggist with merchants’ license: indictment under dramshop act. A merchant and druggist, having a merchants’ license, is not amenable to the dramshop act, but should be indicted and prosecuted under the druggist law (R. S. 1889, ch. 58), or if a merchant only, for a violation of the merchants’ law (R. S. 1889, see. 6915).
    
      
      Appeal from the Webster Circuit Court. — Hon. Argus Cox, Judge.
    Reversed and demanded.
    
      Diclcey & McDowell and James Orchard for appellant.
    Defendant bad a merchants’ license at the time the alleged sales were made; he also kept a stock of drugs, etc.; and if he does not come within the druggists’ act, he should have been indicted under the merchants’ act. State v. Gibson, 61 Mo. App. 368; State v. Williams, 69 Id. 284; Same v. Same, Id. 286.
    No brief filed for respondent.
    Sale of liquor by merchant and druggist with merchants’ license: indictment under dramshop act.
   Biggs, J.

The defendant was indicted, tried and convicted of a violation of the dramshop act. At the conclusion of the evidence the defendant asked the circuit court to instruct that, if at the time of the alleged sale of the whiskey the defendant was a merchant and had a license as such, then he must be acquitted. The court refused the instruction and the defendant has appealed.

The evidence on the part of the state tended to prove that the defendant at the time stated in the indictment sold one half pint of whiskey, and that the whiskey was sold at the defendant’s place of business, where he kept a stock of groceries and- notions, and also a small stock of drugs. The defendant testified that he did not make the sale, and as a further defense he introduced the collector of the county, who testified that he had issued to the defendant a merchants’ license covering the time of the alleged sale. The defendant testified that his license had been misplaced or lost.

Under the decisions in this state the instruction ought to have been given. If the defendant had a license as a merchant, he should have been indicted for a violation of the merchants’ law. (R. S. 1889, sec. 6915.) If he was both a merchant and druggist, he should have been prosecuted for a violation of the druggist law. (R. S. 1889, ch. 58.) There is some evidence that the defendant sold drugs, but there is no evidence that he was a registered pharmacist, or that he employed a registered pharmacist to conduct that portion of his business. State v. Piper, 41 Mo. App. 160; State v. Ryan, 30 Mo. App. 159; State v. Williams, 69 Mo. App. 284; State v. Rafter, 62 Mo. App. 101.

The judgment will be reversed and the cause remanded.

All the judges concur.  