majority">BLAND, P. J.

On the twenty-ninth day of March, 1898, one W. E. Cunningham filed an affidavit before S. P. Higgins, a justice of the peace of Sherrill township, in Texas county, Missouri, charging the defendant with selling liquor in violation of the merchant’s law. A warrant was issued, the defendant arrested and the case set for April 1, 1898.

On April 1 the prosecuting attorney filed with said justice his information charging that the defendant “on the nineteenth day of March, 1898, at the said county of Texas, being then and there a merchant, and having merchant’s license for dealing in goods, wares and merchandise, did then and there unlawfully sell vinous, fermented and spirituous liquors in less quantity than five gallons, to-wit, one-half pint of whiskey,” etc.

A change of venue was then taken by the defendant and the case sent to Ií. W. Thurmond, another justice of the peace of the same township, who proceeded, to try the case on the? same day. Before doing so, however, the prosecuting attorney filed an amended information together with an amended affidavit, sworn to by said Cunningham, which charged, both in the affidavit and in the information, the defendant with having, on the same day set out in the original information, violated the dramshop law by then and there unlawfully selling intoxicating liquors in less quantities than three gallons, etc., without taking out or having a license as á dramshop keeper, or any other legal authority to sell the same. This amended information and amended affidavit, though mentioning in the caption that the case was pending before S. P. Higgins, and *442the affidavit being sworn to before S. P. Higgins, were not filed until after- the transcript had reached Esquire Thurmond and the papers were filed by him and so noted in his docket.

The case was then continued, on motion of the justice, until April 8, when a jury was called, the defendant tried and found guilty and fined forty dollars and an appeal taken in due time to the circuit court of Texas county.

At the Hay term, 1898, an order was made by the court .for the justice to perfect his transcript, and case continued until November term. At the November term the case came on to be heard and the defendant filed his motion to quash the information, which motion was as follows, omitting caption:

“Now comes the defendant and moves the court to quash the amended information filed herein for the following reasons, to-wit: Eirst, because the original affidavit filed by the prosecuting witness, "W". E. Cunningham, before S. P. Higgins, J. P., and the first information filed by the prosecuting attorney before S. P. Higgins, based upon the affidavit of said "W. E. Cunningham, both charged the defendant with the violation of the merchant’s law, section 6915, of chapter 111, Eevised Statutes, and the amended affidavit filed by the said W. E. Cunningham and the information filed by the prosecuting attorney based thereon, which amended information was filed before one H. W. Thurmond to whom said cause had been sent by change of venue, charged the defendant with the violation of the dramshop law, chapter 56, Eevised Statutes 1889, as amended in 1891, and charged an offense wholly different and distinct from that charged in the original affidavit and information, and intended the case to be a continuance of the' first case. Second, because the justice before whom said cause originated has no jurisdiction to try the defendant for the violation of the dramshop law.” -

The motion to quash was overruled and the defendant was put upon trial, which resulted in a verdict of guilty and a fine *443of forty dollars. Erom this conviction defendant duly appealed.

In respect to the amendment of the information, this case is not distinguishable from State v. Emberton, 45 Mo. App. 56, in which it was held that an information could not be amended by filing a substituted information, charging an offense different from the one charged in the original information. On the authority of the Emberton case the motion to-quash the amended information should have been sustained.

The judgment is reversed and the defendant discharged.

Barclay and Goode, JJ.,- concur.

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