tute the seller a retailer.1 Sometimes the statutes provide that sales of less than a specified quantity shall be retail sales, and in such a case it is sufficient to charge a selling by retail without averring the quantity to be less than that specified by statute. The federal statutes require retail dealers to take out a United States license, and under that provision it is held necessary that to be a retailer the dealer must have had an intent to sell the liquor at retail and carried it out by one or more acts; it is not enough that he has dispensed the liquor as an act of kindness or accommodation, even for money, if there has been no intention to retail. One who sells a medicinal preparation knowing that it contains an intoxicating quality, and for use as a beverage, or with knowledge that it was purchased to be used as a beverage, is a retail dealer. To constitute a retailing one sale may be sufficient, but not to constitute a carrying on of the business of retailing; and certainly not where the sale is not in pursuance of any business or employment, but is merely an individual matter." The statutes sometimes require that wholesalers shall pay a license tax, this provision being, however, for the purpose of revenue rather than for the purpose of regulation. To constitute one a wholesale dealer within such statute it is not enough to show sales by the quart, even though not to be drunk on the premises. A general 1 Lillensteine v. S., 46 Ala. 48. Sometimes sales by "merchants" are allowed, although tippling-shops are prohibited: Cole v. C., 8 Dana, 31; C. v. McGeorge, 9 B. Mon. 3. 2 C. v. Eaton, 9 Pick. 165; Reiser v. S., 79 Ga. 326. Where the legislature authorized the city council to regulate the retail of spirituous liquors, held, that the passage of an ordinance that one who sells in a less quantity than twenty gallons shall be a retailer was not valid, as that was too great a quantity to be considered a sale by retail: Harris v. Livingstone, 28 Ala. 577. 3 U. S. v. Bonham, 31 Fed. R. 808. Selling an occasional drink of spirituous liquor out of a barrel not in a bar-room, where there is no intention to defraud the revenue, is not 5 7 criminal under the federal statute: U. S. v. Jackson, 1 Hughes, 531. But a physician who prescribes and furnishes liquor to his patients is a retailer: U. S. v. Smith, 45 Fed. R. 115. 4 U. S. v. Starnes, 37 Fed. R. 665; otherwise if the preparation, though containing spirituous liquor, is sold bona fide as a medicine and not as a beverage: U. S. v. Calhoun, 39 Fed. R. 604. 5 Lawson v. S., 55 Ala. 118. merchant selling by the quart or gallon, even though the liquor is not to be drunk upon the premises, is not a wholesaler. The wholesaler may or may not be subject to other regulations as to selling liquor, depending on the language of the statutes.2 § 1246. Selling by small measure.- Analogous to retailing, for which a license must be procured, is the selling by small measure, designated by some statutes as requiring a license. Where the statute specifies the quantity, the sale of which amount or less shall come within its provisions, it is the amount sold for the use of one individual which determines the character of the sale, and not the aggregate amount of sales for several persons, though bought and paid for by one of them." But the amount sold to one individual at one time is to be counted as one quantity, although it is delivered in several packages; thus, where three pint bottles of beer were disposed of at one sale, it was held not to be a sale of a quart or less.* If a sale is made of a quantity, only a part of which is delivered, the residue remaining in the vendor's barrel not measured out, this is a sale of the part delivered only. So, where the agreement was to deliver to the purchaser from time to time spirits in quantities less than a quart, as they should be called for, the purchaser to take on the whole a quart in quantity, to be paid for when the whole was delivered, it was held that this was a violation of the statute prohibiting the sale of liquors in quantities of less than a quart without a license. But where the whole quantity was separated and kept for the buyer in a vessel to be taken away in portions as called for, it was held that the sale was of such entire quantity. There is conflict in the decisions as to how a sale in small quantities may be alleged. Where the statute specifies that the sale of a quantity less than a specified amount shall be deemed a sale by small measure, some courts have held that the charge of a sale of a quantity less than the amount specified is not sufficient without negativing the fact that the sale was of the specified quantity or more; that is, that the aliega Sometimes sales of more than a quart are to be deemed as wholesale, but there is no definite meaning which can be given to the term "wholesale dealer" aside from statute: Dennehey v. Chicago, 120 Ill. 627. 1 Espy v. S., 47 Ala. 533. 2 S. v. Benz, 41 Minn. 30. 3 Weireter v. S., 69 Ind. 269; Klein v. S., 76 Ind. 333. 4 Olmstead v. S., 90 Ala. 634. 7S. v. Bell, 2 Jones, 337; Dobson v. S.. 57 Ind. 69. tion of the sale of a pint or gill will not be sufficient to charge the sale of less quantity than a quart, unless it is also alleged that the quantity sold was less than a quart; the argument being that there is a sale of less quantity involved in a sale of the larger. There is, however, authority the other way. If the offense of selling in small measure is properly charged, it is not necessary that the proof show the sale of the exact quantity charged, but it is enough that the sale shown is of a quantity which brings the case within the statutory prohibition.' § 1247. To be drunk on the premises.-In statutes regulating the retailing or the selling in small measure, there are usually regulations also as to selling liquor to be drunk on the premises. The offense is complete without the actual drinking of the liquor on the premises, provided it is sold to be drunk there. Where the provision is against permitting to be drunk on the premises, the place where the liquor is to be drunk must be one over which the seller has the legal right to exercise authority or control; but if the prohibition is against selling to 1 C. v. Odlin, 23 Pick. 275; S. v. Fanning, 38 Mo. 409; Wood v. S., 21 Ind. 276; Arbintrode v. S., 67 Ind. 267 (overruling Reams v. S., 23 Ind. 111; McCool v. S., 23 Ind. 127; Willard v. S., 4 Ind. 407); Grupe v. S., 67 Ind. 327; Swigart v. S., 67 Ind. 601. It is sufficient, however, to allege that the sale was of "one-half pint of intoxicating liquor, the same being less quantity than a quart:" Quinn v. S., 123 Ind. 59; or of "less than a quart, to wit, one gill:" Mullen v. S., 96 Ind. 304: Walter v. S., 105 Ind. 589. So where the charge was that defendant without a license was the retailer of spirituous liquors in less quantity than twenty-eight gallons (that being the amount specified by statute as determining whether the sale was at retail), and did sell and retail two quarts of spirituous liquor, this was held sufficient as indicating that the sale was of a less quantity than twenty-eight gallons: Goodhue v. C., 5 Met. 553. Klein v. S., 76 Ind. 333; Buell v. S., 72 Ind. 523. And see infra, § 1273. 4 This is a distinct offense, however, from that of selling in small measure, and both elements need not be alleged: S. v. Corll, 73 Ind. 535 (overruling S. v. Zeitler, 63 Ind. 441). Another form of the provision is prohibiting to be sold in a quart or greater quantity to be drunk at the place where sold: Sanderlin v. S., 2 Humph. 315. C. v. Luddy, 143 Mass. 563; Rater v. S., 49 Ind. 507. It is sufficient to allege that it was "sold to be drunk on the premises: " Picket v. S., 22 Ohio St. 405; Werneke v. S., 49 Ind. 202; Vanderwood v. S., 50 Ind. 26; Bilbro v. S., 7 Humph. 534. But it is not sufficient to charge that it was sold and drunk on the premises: S. v. Freeman, 6 Blackf. 248. 6 Downman v. S., 14 Ala. 342; Swan v. S., 11 Ala. 594. And the same construction applies where the prohibition is against the sale of liquor 2 S. v. Wyman, 42 Minn. 182; S. v. to be drunk in defendant's house, Lavake, 26 Minn. 526. out-house, etc.: Plunkett v. S., 69 be drunk "on or about the premises," this embraces places over which the seller has no legal right to exercise authority, but which are so near to his premises and so situated in relation thereto that they are within the mischief intended to be remedied;1 even under such a provision, however, it has been held that a sale in a public alley out of sight of but adjoining to the seller's premises, though not connecting with them, was not sufficient. The place of drinking may be "on or about" defendant's premises, although it is in a place not leased by him and belonging to another, if it appears from all the circumstances that it was under his control, and that he permitted the drinking there. Other statutes, broader still, cover the drinking in a public street or alley adjoining the place where the liquor is sold. It seems that "the premises" are the premises where the liquor is sold, whether they belong to the seller or he is carrying on business there or not. Sometimes the prohibition is in regard to selling to be drunk in the building or any place appurtenant thereto, and in such case the place appurtenant need not be a part of the premises, but may be some convenient place where customers are in the habit of going with the knowledge and consent of the seller. The intention of the seller as to where the liquor sold by him was to be drunk may be shown by all the circumstances, and it is not material that it appear that he knew the exact spot or that he consented that it should be drunk there, as long as the circumstances show that he connived at and took no means to prevent such drinking. Indeed, it is proper to charge that it was the seller's duty to prevent the liquor being drunk on or about his premises, and that if it was drunk there, even though Ind. 68. And see Blough v. S., 121 defendant's premises may be a drink Ind. 355. ing about the premises: Whaley v. 1 Daly v. S., 33 Ala. 431; Patterson S., 87 Ala. 83; Brown v. S., 31 Ala. v. S., 36 Ala. 297. 2 Daly v. S., 33 Ala. 431. And see Easterling v. S., 30 Ala. 46. 3 Stone v. S., 30 Ind. 115. Some statutes include an adjoining place of public resort: Aultfather v. S., 4 Ohio St. 467. A street may be a public resort: Bandalow v. P., 90 Ill. 218. 4 Bandalow v. P., 90 Ill. 218. And drinking in a public street adjoining 353. 5 Pearce v. S., 40 Ala. 720; Powell v. S., 63 Ala. 177. It is otherwise if the statute says "to be drunk on his premises: " S. v. Woolsey, 92 Ind. 131. 6 Stout v. S., 93 Ind. 150; Shields v. S., 95 Ind. 299; Stockwell v. S., 85 Ind. 522. 7.O'Connor v. S., 45 Ind. 347. without his knowledge and against his caution to the contrary, he would be liable.1 § 1248. Nuisance; keeping place for illegal sale.- Under the head of nuisance it has already appeared that it is a wellrecognized form of that offense to keep a disorderly tipplinghouse, and statutes usually specify such a crime in connection with the illegal sale of liquors. Some statutes refer specially to the keeping of a tippling-house, which is a place where liquors are sold to be drunk on the premises. But the statutes usually go further than this, and make it an offense to keep a place for the illegal sale of intoxicating liquors," and declare the building or place where liquor is illegally sold, or kept with intent to sell, to be a nuisance, and the offense of keeping such a place is distinct from that of illegally selling or illegally keeping for sale. But to constitute a nuisance the place must 1 Christian v. Ş., 40 Ala. 376; Jones v. S., 96 Ala. 56. But to prove the offense on the part of a druggist who may properly sell, but not to be drunk on the premises, it must be shown that such drinking was with his assent: S. v. McAdoo, 80 Mo. 216. 2 Supra, § 1169; S. v. Thornton, Busbee, 252; S. v. Burchinal, 4 Harr. 572. that purpose with the same freedom that men exercise in going to ordinary public resorts for drinking purposes: S. v. Spaulding, 61 Vt. 505. So a dwelling-house may be a liquorshop: Wooster v. S., 6 Baxt. 533; Koop v. P., 47 Ill. 327. To charge the keeping of a bar-room within such a statute it should be alleged to have been used as a place of resort: S. v. 3 S. v. Chapman, 1 S. Dak. 414; Stone, 54 Vt. 550. A public bar may Burrell v. S., 129 Ind. 290. 4 S. v. McNamara, 69 Me. 133; Koop v. P., 47 Ill. 327; Thomason v. S., 92 Ga. 456. Sale as a beverage does not imply drinking on the premises, but includes sales for drinking either at the place or elsewhere, and is distinct, therefore, from a sale for tip pling purposes: S. v. Roach, 75 Me. 123. Selling by the quart to be drunk in the house where the sale is made does not constitute keeping a tippling-house: Moore v. S., 9 Yerg. 353. 5 S. v. Fraser, 1 N. Dak. 425. And within such statutes a hotel is a place: C. v. Purcell, 154 Mass. 388. So a dwelling-house is a "place of public resort" for a sale of liquor if it is frequented by the public for be defined by the court, the word being sufficiently precise in its meaning to admit of such definition: C. v. Rogers, 135 Mass. 536. The word "appurtenant," in describing the place or building, is used to indicate connection with other premises used by the same occupant, and its construction is a matter of law: S. v. Kelleher, 81 Me. 346. To constitute the keeping of a house for illegal sale it is sufficient that a part only is used for that purpose, if the whole house is under the control of the defendant: C. v. Rooney, 142 Mass. 474. 6 S. v. Dugan, 52 Kan. 23. 7S. v. Harris, 64 Ia. 287; S. v. Howorth, 70 Ia. 157; S. v. Jangraw, 61 Vt. 39; S. v. Reno, 41 Kan. 674; |