State v. Curtis

Defendant was convicted on an information charging him with a'violation of section *5977214, Revised Statutes 1909 of the Dram Shop Act, which reads as follows: “It shall be'unlawful for any dramshop keeper knowingly or negligently to permit any minor to enter and remain in his dramshop. Any dramshop keeper violating the provisions of this section, shall, on conviction, be fined not less than fifty nor more than one hundred dollars.”

The information is in these words: “The grand jurors . . . charge that H. "VY. Curtis on the — day of July, 1913, at the county of Henry and State of Missouri, being then and there a dramshop keeper, did unlawfully, knowingly and negligently permit one Everett Phillips a minor under the age of twenty-one years to enter and remain in his said dramshop; against the peace and dignity of the State. ’ ’

Defendant moved to quash the information for the reason that the allegations were “repugnant to each other, and contradictory in a material sense.” The trial court sustained the motion and the State appealed.

We interpret the statute to mean that in order to complete the offense the minor must both ‘ ‘ enter and ■ remain.” The Legislature did not mean to make an offense against the dramshop keeper if he merely permitted a minor to enter his shop. For such entry might be an errand of a merciful and moral nature, or it might be a business purpose. A great number of illustrations will occur to any one. So the law contemplates a “remaining,” for, in that the evil attaches without any mitigating good.

Now this information charges that the defendant “knowingly and -negligently” permitted the minor to “enter and remain.” Defendant says that, knowingly and negligently, are repugnant words and that they contradict each other and thereby they make a bad pleading; and that if he knowingly permitted the minor to enter and remain he could not have negligently per*598mitted Mm to do so. Used in the connection and for the purpose the statute uses them, we think, they are not inconsistent or repugnant. A dramshop keeper may know that a minor is in his shop and immediately form an intention not to allow Mm to remain, yet neglect, or put off, turning* him out; in which instance he would both knowingly and negligently allow him to remain. It is true that a dramshop keeper might be so situated, or the furniture, or the crowd in his place be such that he could not see, or know, that one or more minors were there — remaining there — yet the circumstances might be such that he had good reason to believe they were. In such instance he should endeavor to ascertain; for if he did not, and minors were-in fact remaining in the place, he would be “negligently” permitting them to do so. Therefore the statute will reach a dramshop- keeper who may not know, but should have known — could have known — by 'a reasonable and honest effort to aid the purpose of the law. Therefore “negligently” may be said to cover more than “knowingly,” but they are not repugnant.

Where the statute defines a crime or misdemeanor in the disjunctive, it is sufficient to charge the offense in the language of the statute, stating it in the conjunctive, unless the words are repugnant, and even if repugnant, or contradictory, the pleading will be good if they are not a part of the substance of the offense. [State v. Fitzsimmons, 30 Mo. 236, 241; State v. Flint, 62 Mo. 393, 399; State v. Harroun, 199 Mo. 519, 526; State v. Currier, 225 Mo. 642. 649.]

But in support of his contention that “knowingly” and “negligently” are contradictory expressions, defendant cites us to State v. Lockwood, 119 Mo. 463, with other cases illustrating his point. In that case that. indictment charged that the defendant “willfully and with culpable negligence” made an assault with a pis*599tol, etc. There was a motion, to quash on the ground that the pleading “charges a willful or intentional killing and an involuntary killing in the same count, ’ ’ and that it “charges, or attempts to charge, both an intentional and an unintentional killing.” The Supreme Court held the indictment bad; saying that “if the killing was ‘willful’ as charged in the indictment, then it could not have been accidental, or by ‘culpable negligence.’ The terms are inconsistent, as they cannot both be true. If the killing was by ‘culpable negligence’ then it was not intentional.”

We think that, case is not applicable. While the word ‘ ‘ willfully ’ ’ includes ‘ ‘ knowingly, ’ ’ yet it is more; it implies a perverse purpose and an active evil intent to commit the unlawful act. [Spurr v. U. S., 174 U. S. 728, 734; State v. Stein, 48 Minn. 466, 470; Williams v. The People, 26 Colo. 272, 274; Johnson v. State, 61 Ala. 9, 11; Brooks v. Railroad, 158 Ind. 62, 70; Stewart v. Railroad, 32 Iowa, 561.] These cases amply sustain the Supreme Court in deciding that the words “willfully” and “negligently” were repugnant; and they likewise show that one may “know” of á thing, or an act, and “negligently” permit it, or do it; and that the latter words are not inconsistent or repugnant.

For the foregoing reasons the judgment will be reversed and the cause remanded.