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It is sufficient, however, when the indictment is for setting up a lottery, or for having tickets in possession with intent to sell, to follow the words of the statute. P

III. EVIDENCE.

$ 2432. A variance as to the ticket, when it is set forth, or as to the terms it offers, if it be only given in substance, is fatal.q People !. Payne, 3 Denio, 88. The a lottery established or set on foot for indictment should contain either a the purpose of disposing of real estate, particular description of the lottery, goods, money, or things in action. or assign as a reason that a more par. The character and description of the ticular description of the lottery was lottery need not form the subject of unknown to the grand jury; and an an express averment. It is sufficient averment merely that the name of the if these appear argumentatively in the lottery was unknown to the grand indictment, especially after verdict. jury is insufficient; but it is not nec- The People v. Warner, 4 Barb. 314. essary that the indictment should set Under the revised statutes (1 R. S. forth the amount of the lottery. Peo- 665, § 28) it is a misdemeanor to ple v. Taylor, 3 Denio, 99. It is not publish in this state an account of a necessary to set out the tickets sold, lottery to be drawn in another state or the names of the purchasers, it being or territory, although such lottery be alleged that the names were unknown authorized by the laws of the state to the jurors. People v. Taylor, 3 where it is to be drawn. Denio, 99.

It was accordingly held, that a The publication in New York of an demurrer to an indictment, which advertisement of a lottery to be drawn charged the defendant with publishin a place where such lottery is not ing in the city of New York an unlawful is an indictable offence; and account of a lottery to be drawn in if the indictment set forth the adver- the District of Columbia, was not well tisement in hæc verba, showing that the taken. lottery was for the purpose of dispos- Where the indictment charged the ing of money or property, it is suffi- defendant with publishing an account cient, although the purpose of the lot- of an illegal lottery, and set forth in tery is not otherwise alleged in the hæc verba the lottery scheme, which indictment. People v. Charles, 3 De- showed that the prizes consisted of nio, 212, 610.

sums of money; held good, although The act to prevent raffling and lot- it was not otherwise averred that the teries was intended to prevent the lottery was set on foot for the pursale of lottery tickets in the state, pose of disposing of money, lands, &c. whether the lottery was established Charles v. The People, i Comstock, here or elsewhere. And an indict- 181. ment for vending lottery tickets need p Com. v. Dana, 2 Metc. 329; Com. not allege that the lottery was estab- v. Horton, 2 Gray, 69. lished in this state. An indictment q Com. v. Gillespie, 7 Serg. & R. for vending a lottery ticket need not 469; Whitney v. State, 10 Indiana, expressly aver that the ticket was of 404.

CHAPTER V.

ILLICIT SALE OF INTOXICATING LIQUORS.

I. LICENSE : ITS

AVERMENT, 4. STRONG BEER, § 2440. PROOF, AND EFFECT, $ 2434. VI. HOW FAR MEDICAL USE IS A II. WHAT IS EVIDENCE OF A DEFENCE, S 2441.

“ COMMON SELLER," OR OF A VII. HOW FAR IGNORANCE IS A TIPPLING-HOUSE, $ 2437.

DEFENCE, § 2442. III. PRINCIPAL RESPONSIBLE FOR VIII. AUTREFOIS ACQUIT, § 2443. ACT OF AGENT, $ 2438.

IX. FEME COVERTS, S 2444. IV. AGENT'S RESPONSIBILITY FOR X. AVERMENT AND PROOF OF PRINCIPAL, $ 2439.

VENDEE, $ 2445.
V. WHAT MAY BE CONSIDERED XI. AVERMENT AND PROOF OF

SPIRITUOUS OR “INTOXICAT- SALE, $ 2447.
ING" LIQUORS UNDER THE 1. AVERMENT, $ 2447.
STATUTES, § 2440.

2. WHAT ARE SALES,

$ 2452.
1. COMMON CORDIAL, $ 2440.

3. PROOF OF SALES, § 2454.
2. BRANDY OR GIN, MIXED
XII. PENAL RESPONSIBILITY

OF
SUGAR AND WATER, S 2440.

VENDEE, $ 2463.
3. UNADULTERATED GIN, BRANDY, XIII. CONSTITUTIONALITY OF LI-

OR RUM, WITHOUT PROOF THAT QUOR LAWS, § 2464.
THEY ARE INTOXICATING, $ 2440.

WITH

$ 2433. The statutes of the several states regulating or prohibiting the sale of intoxicating liquors are so numerous, so various, and so constantly the subject of repeal or amendment, that it is not proposed to introduce them under this head. All that can be here attempted is to classify such of the decisions under them as may be of general application.

It may at first be noticed that a tippling-house, or house for the sale of intoxicating liquors, when noisily and offensively conducted, is a nuisance at common law, and as such indictable. a At present our object is limited to the statutory offences so far as they are capable of a common analysis. al

1. LICENSE : ITS AVERMENT, PROOF, AND EFFECTS.

1. Negation of License. $ 2434. As a general rule, the indictment should negative the license. b If the negation of the license to sell is as to quantity, coextensive with the quantity charged to be sold, it is sufficient. The general negation, “not having a license to sell liquors, as aforesaid,” relates to the time of sale, and not to the time of finding of the bill, and will suffice. c “ Without being duly authorized and appointed thereto, according to law,” is a sufficient negation.d

a See ante, $ 2392.

al For forms of indictment, see Wh. Prec., as follows:

(792) Presuming to be a common sell

er of wine, under Maine statute.

How provisos and exceptions in statutes are to be treated, has already been discussed. e

2. Proof of License. $ 2435. It is for the defendant to prove he is licensed, the prosecution not being bound to prove a negative. f It is specially (793) Selling liquors by retail in New (815) Same in Virginia. Hampshire.

(816) Same in North Carolina. (794) Retailing in liquor, &c., without (817) Same in Alabama.

license, under s. 1, c. 83, Verm. Rev. (818) Same in Kentucky. Stat.

(819) Same in Tennessee. (795) Selling liquor by the small, (820) Same in Mississippi. under the same.

b Ante, $ 378-80; Com. v. Thurlow, (796) Selling liquor, &c., under Mass. 24 Pick. 374; State v. Webster, 5 HalRev. Stat. c. 47, s. 1.

sted, 293 ; Hampton's case, 3 Gratt. (797) Another form under same sec- 590; State v. Munger, 15 Ver. 290; tion.

State v. Horan, 25 Texas (Supp.), 271; (798) Under Rev. Stat. c. 47, s. 2. Com. v. Smith, 6 Bush, 303. Indict(799) Another form under same. ment need not aver defendant not to (800) Under Rev. Stat. c. 47, s. 2. be a “druggist," &c.; Surratt v. State, (801) Another form uuder same. 45 Missis. 601; Riley v. State, 43 (802) Another form under same. Missis. 397; see also State v. Buford, (803) Another form under Rev. Stats. 10 Mis ari, 703; State v. Fuller, 33

c. 47, s. 2, where defendant is li- N. H. 259; State v. Blaisdell, 33 Ibid. censed to sell wine.

388. As has been seen (ante, $ 378), (804) Another form under same. the whole question depends on the (805) Another form under same. principle underlying the statute. (806) Another form under same. c State v. Munger, 15 Ver. 290. (807) Selling liquor without license, d Com. v. Keefe, 7 Gray, 332;

under Mass. Rev. Stats. c. 47, s. 3. State v. Fanning, 38 Mo. 359; Com. (808) Another form under same. v. Conant, 6 Gray, 482. See State v. (809) Another form under same. Hornbreak, 15 Mo. 478; Stater. (810) Violation of license laws in Andrews, 28 Mo. 17; Com. v. Boyle, Rhode Island.

14 Gray, 3. (811) Same in New York.

e Ante, $ 378. (812) Same in New Jersey.

f State v. Morrison, 3 Dev. 299; (813) Same in Pennsylvania.

State v. Crowell, 25 Me. 174; R. v. (814) Another form for same, being Turner, 5 M. & Sel. 205; R. r. Hanthat used in Philadelphia.

son, Paley on Conv. 45, n.; 1 Car. &

held in Massachusetts, that the Stat. 1854, c. 102, imposing upon the defendant the duty of proving a license in all prosecutions for selling “spirituous ” liquors, applies to the Stat. 1850, c. 232, against selling " intoxicating” drinks.g

3. Effect of License. $ 2436. A license having been granted to one man to keep a tavern in a particular house, from which he afterwards removed ; another being indicted for retailing spirituous liquors in that house, may show that he did it as the agent or partner, and under the charge of him to whom it was granted ; and may, on that ground, be acquitted by the jury.h But a license is no protection to a partner whom A. subsequently takes, when the license is, not to keep a tavern, but to sell liquor. i And, generally, a license to one cannot be assigned to another. j

A license to sell liquor, granted to two persons as partners, will, during the period mentioned in the license, protect one of the partners against the penalty for selling without a license, although the other has retired from the firm. k

The grant of a license to retail spirituous liquors, from a day past, is a release of the penalties for retailing without license subsequent to that day, although prior to the taking out of the license. I

A license to sell spirituous liquors has no relation back to the date of the order of the county court granting permission to obtain it, and will only protect one who sells from and after the date of its issue. m Nor will a license “ to keep a dram-shop, block No. 15, in the city of St. Louis,” justify a sale in any other place in St. Louis. n

P. 538 ; State v. McGlynn, 34 N. H. i Long v. State, 27 Ala. 32. 422 ; but see Mehan v. State, 7 Wisc. j Lewis v. U. S. 1 Morris, 199; 670; Com. v. Thurlow, 24 Pick. 374; Com. v. Bryan, 9 Dana, 310. which case is confined to its particular k State v. Gerhardt, 3 Jones Law point in Com. v. Boyer, 7 Allen, 306. N. C. 178. See ante, $ 707-8-9, &c.

i City v. Corlies, 2 Bail. 186. 9

Com. v. Kelly, 10 Cush. (Mass.) m State v. Hughes, 24 Mo.(3 Jones) 69.

147. h Barnes v. Com. 2 Dana, 390. See

n Ibid. Gray v. Com. 9 Dana, 300.

II. WHAT IS EVIDENCE OF A “COMMON SELLER,” OR OF A TIPPLING

HOUSE. $ 2437. Proof of retail sales of liquor drunk on the premises, is sufficient proof of the party being a common seller or of his keeping a tippling-house. p

III. PRINCIPAL'S RESPONSIBILITY FOR ACT OF AGENT OR PARTNER.

§ 2438. A shopkeeper is indictable for an unlawful sale of spirituous liquors by a servant employed in his business. 4 Where, however, the sale is not in the immediate line and direction of the principal's business, the fact of agency is only primâ facie evidence of the principal's guilt. r If there be no authority, express or implied, the principal must be acquitted. 8 Primâ facie agency may be rebutted by showing that the agent was explicitly and bonâ fide ordered to make no such sale, and that the sale was made without the defendant's cognizance and against his direction, and outside of the range of the agent's duties. 81

One partner is liable for another's sale, when such sale was in pursuance of an agreement between the two that liquor should be sold.t

While in order to convict an employer for specific sales of intoxicating liquor by his clerk, the jury must be satisfied of his assent to, and not merely of his knowledge of the sales ; u yet when the charge is for a nuisance, then the employer is generally liable for all the agent's acts within the range of his employment. v

Evidence that liquor charged to have been sold by the father p Brock v. Com. 6 Leigh, 634. See p Com. v. Nichols, 10 Metc. 259. Com. v. Wood, 4 Gray, 11 ; Cochran v. See ante, $ 151-2-3-4, 1003 a, 2874. State, 26 Texas, 678.

s Barnes v. State, 19 Conn. 398 ; 9 Com. v. Park, 1 Gray, 553; Com. Hipp v. State, 5 Black. 149; State v. v. Nichols, 10 Metc. 259; Com. v. Dawson, 2 Bay, 360; Goods v. State, Major, 6 Dana, 293 ; State v. Mathis, 3 Greene (Iowa), 566. See fully, ante, i Hill S. C. 37; Britain r. State, 3 $ 151-2-3, &c., 2374. Humph. 203; Com. v. Gillespie, 9 Serg. sl Anderson v. State, 22 Ohio St. & R. 469; Molihan v. State, 30 Ind. 305; Barnes v. State, 19 Conn. 399; 266; State v. Dow, 21 Verm. 484; Com. v. Nichols, 10 Mete. 259. Schmidt v. State, 14 Mo. 137; State v. t State v. Neal, 7 Foster, 131. Stewart, 31 Me. 515.

u Com. v. Putnam, 4 Gray, Mass. 16.

v Ante, $ 2374.

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