some states, and at first glance with greater reason, so far as concerns principle, it is determined that in the indictment the name of the person to whom the sale was made must be specified, if known. d It is enough, however, in any view, to aver the vendee to be unknown, if such be the case. e And in view of the fact that the offence is not like assault, directed against an individual, but like nuisance, is directed against the community, we may reconcile ourselves to the more convenient practice of omitting the name of the vendee, in all cases where the statutes forbid sales irrespective of persons. § 2446. Where the vendee must be named, and his name is at the time unknown, it is enough so to aver it, and it will be no variance, though it appear that subsequently to framing the complaint or indictment the name became known.f An allegation in an indictment, that the defendant, without being licensed according to law, sold spirituous liquors to A., is proved by evidence that A. bought the liquors of the defendant for B., at B.'s request and with his money, without disclosing that fact to the defendant. g Where, however, the agency is disclosed, the sale must be averred to have been to the principal in states where the law requires the vendee to be named. h An information upon the second section of the Ohio act to provide against the evils resulting from the sale of intoxicating liquors, must aver that the seller knew that the buyer was a minor. i XI. AVERMENT AND PROOF OF SALE. 1. How Sale is to be averred. § 2447. Intoxicating liquor. When a statute makes the sale of intoxicating liquor" indictable, it is enough to describe the thing sold as "intoxicating liquor," without specification of N. Y. 449; State v. Gummer, 22 Wis. d State v. Steedman, 8 Richards. 312; State v. Jackson, 4 Blackf. 49; Dorman v. State, 34 Ala. 216; Capritz v. State, 1 Md. 569; ante, § 2431; State v. Walker, 3 Harrington, 547; Com. v. Thurlow, 24 Pick. 374; Neales v. State, 10 Mo. 499; overruled by State v. Rogers, 39 Mo. 431. e State v. Carter, 7 Humph. 158. f Ante, § 251. g Com. v. Perley, 2 Cushing, 559. h Com. v. Remby, 2 Gray, 508. i Aultfather v. State, 4 Ohio (N. S.), 467. kind.j But when only specific kinds of such drinks are prohibited, then the indictment must designate the kind, assigning to it one of the statutory terms. k § 2448. Measure. When the statute prohibits sales of less than a particular measure, the indictment must aver the quantity sold to be less than such measure, in the statutory words. It will not be enough to aver simply a sale by a smaller measure. Thus it is not enough to aver selling a "pint," when the statute makes illegal the selling of "a less measure than a quart." The indictment must aver the selling of "a less measure than a quart."l But when every mode of sale is illegal, any kind of measure known to law may be averred. m § 2449. Duplicity.. "Sell and offer to sell" is not double. n § 2450. The price of a sale need not be averred. o § 2451. Common seller. - An indictment which avers generally that the defendant, at a time and place named, was a common seller of intoxicating liquors, is sufficient, without setting forth any particular sales, or any number of sales.p Locality. An information upon the fourth section of the Ohio statute must aver that the place of sale was one of public resort. q Under the same statute it is a sufficient averment, if the place of sale is described as either a tavern, eating-house, bazaar, restaurant, grocery, or coffee-house, which ex vi termini import a place of public resort; but it is otherwise with "room,” which has no such import. r License. shown. 8 In what way license is to be negatived is already j Com. v. Conant, 6 Gray, 482; Com. v. Dean, 14 Gray, 99; Com. v. Ryan, 9 Gray, 137; State v. Blaisdell, 33 N. H. 388; Downey v. State, 20 Ind. 82; State v. Carpenter, Ibid. 219. k State v. Fox, 1 Harrison, 152. 1 Com. v. Odlin, 23 Pick. 275; State v. Shaw, 2 Dev. 198; though see Reams v. State, 23 Ind. 111. m Com. v. Brown, 12 Metc. 522; State v. Reed, 35 Me. 489; Cool v. State, 16 Ind. 355. n Barnes v. State, 20 Conn. 232. See Com. v. Eaton, 15 Pick. 273; Com. v. Harris, 13 Allen, 534. Ante, § 390. o Ibid.; and see Com. v. Odlin, 23 Pick. 275; State v. Miller, 24 Mo. 532; State v. Clare, 5 Iowa, 509; Com. r. Roberts, 1 Cush. 505; but see Divine v. State, 4 Ind. 240; Hubbard v. State, 11 Ind. 554, contra. p Com. v. Edwards, 4 Gray, 1 ; Com. v. Wood, 4 Gray, 11. See State v. Collins, 48 Me. 217. 9 Aultfather v. State, 4 Ohio N. S. 467. r Ibid. 2. What are Sales. § 2452. Sales on credit are sales; t but, unless there be a delivery, a mere agreement to sell is not indictable. u § 2453. "Trades." "Drinking free, but money paid for admittance."- No trick, by which a sale is covered up as a trade, or as a free drink when money is paid for admission, will be a defence. If the liquor is directly or indirectly given for a valuable consideration, it is a sale.v But a bona fide gift is not a sale.w 3. Proof of Sales. § 2454. Circumstantial evidence is a legitimate method of establishing the fact of illicit sales.x In New York it is admissible to prove that the defendant, being a tavern-keeper, kept a bar with bottles in it. y In Rhode Island, a sign-board put up in a bar room, as such, with the words, "Boarding by J. B. Wilson," the defendant, painted thereon, is presumptive proof, unexplained, that the defendant is the keeper of the bar room. z But in Massachusetts it is said that on the trial of an indictment for being a common seller of intoxicating liquors, evidence that the defendant, during a part of the time covered by the indictment, kept a public house, and had upon it an innkeeper's sign, is irrelevant and inadmissible. a Where the respondent, being one of a firm, had made out a bill of the sale of goods at sundry times, in his own handwriting, upon which was entered the sale of spirituous liquors by the small measure, at different times, and which had been receipted by him, such bill of sale was held competent evidence to go to the jury to prove a sale, and it was determined that the person to whom the sale was made need not be produced. b t Com. v. Burns, 8 Gray, 482. u Pulse v. State, 5 Humph. 108. v State v. Redden, 5 Harring. 505; State v. Bell, 2 Jones N. C. 337, affirming State v. Kirkham, 1 Ired. 384; Com. v. Clark, 14 Gray, 367. w Allen v. State, 14 Texas, 633; Schaffner v. State, 8 Ohio St. (N. S.) 643. x Com. v. Kennedy, 97 Mass. 224; Com. v. Cotter, Ibid. 336; Com. v. y People v. Hulbut, 4 Denio, 133. a Com. v. Madden, 1 Gray, 486. b State v. Munger, 15 Ver. 290. § 2455. Time immaterial. The day averred in the indictment is immaterial. Proof of any other day, prior to the finding of the bill, is enough. c One who is tried on several complaints, charging him with unlawful sales of intoxicating liquors to the same person on different days, and convicted upon evidence which is sufficient to prove only one such sale, may be sentenced on either of the complaints, and have a new trial on the others. d § 2456. Measure immaterial, If the proof shows the sale of an illegal amount, it is no variance if such amount does not correspond with that laid in the indictment. d1 § 2457. Proof of amount sold. - The measure or amount of liquor sold may be presumptively shown. e § 2458. Joint sales. - Two persons may be jointly guilty, and if so jointly convicted of the offence of retailing spirits. f § 2459. Only offences charged to be proved. — It is erroneous to admit evidence of a greater number of offences than there are counts in the indictment, g unless to prove scienter or quo animo.h § 2460. Bill of particulars.— The requiring of a bill of particulars, on the trial of an indictment for being a common seller of intoxicating liquors, is within the discretion of the presiding judge; and his refusal to require one is not subject to exception. i § 2461. Partial license no defence.-Proof that the defendant, during part of the time embraced in an indictment for being a common seller of intoxicating liquors, was authorized to sell, or that on certain occasions he refused to sell, is not an answer to the whole indictment.j § 2462. Statutory presumption as to sale. The provision of the Massachusetts Stat. 1835, c. 215, s. 34, that in prosecutions for the sale of spirituous and intoxicating liquors, delivery in or c U. S. v. Riley, 5 Blatch. C. C. 204; Com. v. Carroll, 15 Gray, 409. Ante, § 599. See Com. v. Wood, 4 Gray, 11. d Com. v. Remby, 2 Gray R. 508. See Com. v. Walton, 11 Allen, 238. di Winston's case, 4 Leigh, 680; Brock v. Com. 6 Leigh, 634; State v. Moore, 14 N. H. 451 (citing Stark. on Ev. 1539). Com. v. Griffin, 3 Cush. 523. See Com. v. Cook, 12 Allen, 542. Only one need be convicted. State v. Simmons, 46 N. C. 622. g Hodgman v. People, 4 Denio, 235. h Com. v. White, 15 Gray, 407; Pearce v. State, 40 Ala. 720. Ante, § 635. i Com. v. Wood, 4 Gray (Mass.), 11; e Scott v. People, 25 Texas (Suppl.), State v. Bacon, 41 Ver. 526. See 168. f State v. Caswell, 2 Humph. 399; post, § 3156. j Com. v. Putnam, 4 Gray, 16. from any building or place, other than a dwelling-house, “shall be deemed primâ facie evidence of a sale, and be punishable as such sale," is constitutional, and applies to all cases of such prosecutions; but the presumption is liable to be rebutted by attending circumstances, or other facts. k XII. PENAL RESPONSIBILITY OF VENDEE. § 2463. Is the vendee of spirituous liquors, illegally sold, penally responsible? At the first glance, remembering that all accessaries to misdemeanors, and all persons participating in the commission of misdemeanors, are principals, our answer would be in the affirmative. A close inspection, however, greatly qualifies this conclusion. The sale of spirituous liquor, it must be remembered, is not a misdemeanor per se, any more than is the sale of meat. When, however, the sale of liquor is unlicensed then it is indictable, just in the same way as the sale of meat when unwholesome is indictable. To make, therefore, a purchaser in either case a principal, his intention in purchasing must have been to have promoted the selling of unwholesome meat, or of illicit liquor. But an ordinary purchaser, without special proof of scienter and intent, cannot be charged with this. Consequently an ordinary purchaser cannot be charged as a principal in the offence. Hence an ordinary purchaser may be compelled to answer under oath as to whether he made the purchase. l XIII. CONSTITUTIONALITY OF LAWS RESPECTING. § 2464. Legislative zeal has led to provisions in this relation which have not infrequently provoked grave constitutional issues. Of these it is at present possible only to give the results. It has been held in Massachusetts that an act directing the forfeiture of intoxicating liquors with illegal intent was unconstitutional, on account of its summary and arbitrary disregard of the ordinary safeguards of trial.m In Texas it has been ruled that an act was unconstitutional which provided that the indictment need not negative license. n A similar decision was made in Maine as to k Com. v. Wallace, 7 Gray (Mass.), 222. Ante, § 808; State v. Rand, 51 N. H. 361; Com. v. Downing, 4 Gray, 29; Hill v. Spear, 50 N. H. 254; Com. v. Willard, 22 Pick. 476. Doran's case, 2 VOL. II. — - 47 Parsons, 467, and State v. Bonner, 2 Head, 135, were under statutes making vendee specially responsible. m Fisher r. McGirr, 1 Gray, 11. n Hewett v. State, 25 Texas, 722; State v. Horon, 25 Texas, Supple. 271. 737 |