
    TOWNLEY adsm. THE STATE.
    Indictment for selling Ardent Spirits Ac. under the statute. Elm. Dig. 249. Motion to quash.
    1. In an Indictment for selling Ardent Spirits, without license, it is not necessary to aver, that the liquor sold, was not compounded and intended to be used as a medicine.
    
      2. Such an averment is only necessary, in an indictment on the second elanse of the fifth section of the statute of March 1, 1838, Elm. Dig. 24&, for selling a composition of which, wine, or rum, or other ardent spirits, is the chief ingredient.
    3. An Indictment under the third clause of said section, for selling “ mixed liquors ” by a less quantity than five gallons, must show, that the mixture is composed of some intoxicating liquors.
    4. The word “all” in the sixth section of the statute, must be restricted to mean, all indictments for selling wine, or some other of the simple and unmixed liquors, named in the statute.
    5. An Indictment concluding “ contrary to the statutes,” where there is but one statute on the subject, will not be bad on that account.
    
      J. Ohetwood for defendant.
    
      JB. Williamson for the state.
    
      John Chetwood in support of the motion.
    The Indictment charges, that the defendant on the 11th day of January, 1841, at &c. unlawfully did sell by retail, and cause and knowingly permit to be sold to one Milven Decker, certain ardent spirits, by less measure than one quart, to wit: one half gill, without a license first had and obtained &e. contrary to the form of the statutes in such case made and provided.
    It is objected in the first place, that the indictmenfis defective and ought to have been quashed, because it is not averred “ that the same ardent spirits, were not or had not been compounded and intended to be used as medicine.”
    And second, because the conclusion against the form of the statutes, in the plural, is- bad, there being but one statute in force prohibiting such sale, all others having been repealed. For the act prohibiting the sale, see Elm. Dig. 249 sec. -5, and for the act authorising a general description of the liquor sold by the term “ ardent spirits,” see Elm. Dig. 249, seo. 6.
    First, as to the construction of this latter section. “ In all indictments hereafter found upon this act, or the act to which this is a supplement, or any other act relative to Inns and Taverns, it shall he sufficient to dpseribe the liquor sold, as ardent spirits, without specifying particularly the kind or description thereof.
    The word “liquor” in this section, refers to and includes the 
      “composition ” mentioned in the previous section, and is the same as if the Legislature had said, “ it shall be sufficient to describe the “ composition ” sold, as “ ardent spirits.”
    
    To be satisfied that this is the proper construction of this section, we have only to inquire what was the difficult}, which this section was intended to obviate ? When the prohibitory act stood alone, it was always necessary to describe the liquor sold, by its particular name, and if the State failed to prove a liquor sold as named in the indictment, the defendant escaped. This point was decided in 1st Harrison, 152, State v. Fox et al. Sometimes the liquor was mixed with others or with other ingredients, as water, lemon juice &c. and then sold, and it was rendered next to impossible to discover before the Grand Jury, exactly what was sold, although it might be known, that in some particular the statute had been violated. To avoid this difficulty, this section was enacted, so that under the general description of “ Ardent Spirits ” the defendant might be charged, and if proved to have been guilty of selling any of the prohibited articles, by less measure than a quart, without a license, he could be convicted and punished.
    Such being the evident intention of the Legislature, it is a rule of construction, “ that such an one ought to be put upon a statute, as may best answer the intention which the makers had in view : for qui hosret in litera — hceret in eortiee.” Bac. Abr. Tit. Stat. page 647.
    And if such a construction is to prevail, “ as may best answer the intention which the makers had in view,” that “ intention ” by another rule, Bac. Abr. title Stat. page 648, “ is at sometimes to be collected from the cause or necessity of making a statute. At other times from other circumstances. Whenever this (intention) can be discovered, it ought to be followed with reason and discretion in the construction of the statute, although sueh construction seem contrary to the letter of the statute.”
    
    Whenever any words of a statute are obscure or doubtful, the intention of the legislators, is to be resorted to in order to find the meaning of the words.
    “ A thing which is within the intention of the makers of a statute, is as much within the statute, as if it were within the letter.” Bac. Abr. title Stat. page 648.
    
      That the word “ liquor ” in the expression, “ it shall be sufficient to describe the liquor sold, as Ardent Spirits,” includes the compound as well as the simples, is also ascertained by the language used in the section, viz : “ that in all indictments &c. not,in those indictments which hereafter are found for selling the wine, the rum, the gin &c.” — ^numerating the simples.
    Again, the words, “ in all indictments hereafter found upon this act,” mean that can be found in virtue of this act, that is to say, that in every offence against this act, the offence of selling the “ composition ” as well as the several simple liquors enumerated, it shall be sufficient to describe them or either of them by the name of “ Ardent Spirits.” Then for the purpose of the objection and argument, we have a.right to presume, that the “ Ardent Spirits ” spoken of in the indictment, means the “ composition mentioned in the act; and if the “ composition,” should it not have been averred in the indictment, that it was not compounded and intended to be used as a medicine? Certainly, for it is not for the sale of every composition, that a man can be indicted: for the composition that is compounded and intended to be used as a medicine is excepted, and a person may sell such : and unless it is averred, the said “ composition ” (or as the act now permits the description,) that the said “Ardent Spirits” was not or had not been compounded and intended to be used as a medicine, it is defective according to the irresistible current of authorities.
    In Palmer’s case, Leach 120, it was not all milled money the putting off of which, was a felony by the statute of William III, but only such as was unlawfully diminished and not cut in pieces; the indictment did not charge or aver, that it had not been cut in pieces, and it was holden bad.
    As to the strictness required to be pursued in framing indictments upon statutes, see Chitty Crim. Law, page 282, et passim.
    
    As “ Ardent Spirits” is description of a composition as well as a simple, for the purpose of argument, it may be presumed to be a “ composition ” which the defendant is charged with having sold, and, if so, it should be averred, that it was not or had not been compounded and intended to be used as medicine.
    A conviction for any offence, enacted by statute must negative 
      every exception contained in the clause creating the offence. 8th Term. Rep. 542, Rex v. Jukes et al. 1st Saunders 262 in notes.
    When an exception is in the enacting clause giving a right or ff-xeiture, the party suing for the right or forfeiture, must negative the exception in his declaration. 7 Term. Rep. 27, Gill v. Serivens.
    
    An information founded on a penal statute, must negative the exceptions in the enacting clause creating the penalty ; and also those contained in a former clause to which the enacting clause refers in express terms. 1 Strange, 66; 6 Term. Rep. 559, Rex v. Pratten; 1 Strange, 497, Rex v. Sparling; Ibid. 555, Rex v. Ford.
    
    There is a great difference between the purview of an act, and a proviso. Lord Mansfield in the case of Rex v. Jarvis, 1 Burrows Rep. 153; 1 Term. Rep. 145; 1 East. 646, in notes, Rex v. Stone.
    
    An excuse under a proviso need not be taken notice of in a conviction; 1 East Rep. 646, in notes; 2 Strange, 1101, Rex. v. Brian.
    
    The case of Rex v. Brian is directly in point.
    The defendant was convicted on the Gin act; an exception was taken, that there was no averment, “ that it was not sold to be used in medicine /’ but it was replied by Strange to the cases cited, that the reason of those cases was because those were exceptions in the enacting clause; whereas this about medicines comes in by way of proviso; and is by way of defence to be shown on the defendant’s part; according to the rule in 1 Chitty Crim. Law, 283; 1 Burrows, 148; 2 Burr. 1037; 1 East, 646, in notes.
    Where the excuse is given under a proviso, it is not necessary to negative it, but when it is in the purview or enacting clause, it must be negatived, 1 Chitty Crim Law, 283; 1 Levina R. 26.
    The words “or any composition,” excepting such “as shall be compounded or intended to be used as medicine,” are in the purview or enacting clause, and do not come in by way of proviso ; as is the case of the time when prosecution shall be commenced under this act.
    In a conviction on the game act in England, it must be particularly and negatively specified, that the defendant had not any of the qualifications, 1 Burr. 148. Lord Mansfield. It is now settled by the uniform - course of authorities, that the qualifications must be negatively set out. I Burr. 153; 15 East, 456, Rex v. Earnshaw.
    
    In indictments for having a coining press, every thing which shows, that the defendant had no authority, must be negatively set out.- 15 East, 145; 2 Lord Raymond, 1415, The King v. Hill.
    
    The-case. in 1 Term. Rep. 127, decides that the evidence need not negative all the qualifications in the act. So the case in 2d Lord Raymond, 1386.
    There is a great difference however, between the necessity of alleging the negative, and of proving it.
    The rule of pleading is more strict in indictments than in civil actions. Yet it is holden, that in a prosecution for a penalty on the 19th George 2d chap. 30, for impressing a mariner in the West India Trade, the declaration must aver the negative, that he had not deserted from any of His Majesty’s Ships of War.
    Objection to a conviction for unlawfully taking and killing fish, in that it did not allege defendant had not the license or consent of the owner, and the conviction quashed on the objection. 2d Burrows, 679, Rex v. Mallinson. “ It may be his own fish or his own pond.” Says Lord Mansfield in giving his opinion.
    For aught that appears upon this indictment, (and we have a right to presume it,) it may be the composition spoken of in the act; and if so, for aught that appears to the contrary, it may have been compounded and intended to be used as a medicine, and if so it ought to have been averred.
    It was even doubtful whether you must not negative by evidence also, the want of the qualifications to kill game. 1 East R. 637 The King v. Stone.
    
    
      Indictment for not repairing a highway, charging the corporation of Liverpool with a prescriptive liability to repair all common highways within certain limits; excepting such as ought to-be-repaired according to the several statutes in such case made and provided, is bad for not averring, that the highway in question was not within any of the exceptions.
    The prosecutor has acknowledged the rule by averring, that the defendant had no license &c. The language of the act is the same, as if it read thus, “ It shall not be lawful for any person to sell “Ardent spirits ” &c. excepting he have a license for that purpose, &o. If such were the words, it would be necessary to aver, that the defendant had not a license &c. 1 Term. Rep 144, (137 in some editions.) As was said by Lord Mansfield in the case of Spiers v. Parker.
    
    It is not always sufficient to allege even the exact words of a statute — as in the case of a declaration on the statute against robbing an orchard; although the act contains the words “ if any person rob an orchard, he shall &e.” yet it must be further alleged of what, or how the orchard was robbed. 1 East. Rep. 647, in notes.
    In the present indictment, the words, “Ardent Spirits,” being in law a sufficient description of the composition, it may be presumed to be the composition : or in other words, it will not be presumed to be the simple liquor; and if the composition, or if not the simple, without a negative of the exception, it may be presumed to be the exception, for “ omnia proesumunter legitimi facta, donee probetur in contrarium. Injuria non preesumitur.” And upon this presumption, the case in 1 Term. Rep. 137, (or 141 in some editions) Spiers v. Parker, is directly in point; where Lord Mansfield says, “ this being after verdict, it is only necessary to prove at the trial, what is alleged in the declaration; and here it is only alleged, that these mariners had not deserted from the Diamond; therefore we cannot presume, that in this case, it was proved that these men had not deserted from any of His Majesty’s Ships.” So also the opinion of Bailer, Justice “as to its being intended after verdict, nothing is to be presumed, but what is expressly stated in the declaration, or what is necessarily implied from those facts, which are stated &c. See also in 4 Term. Rep. 472, Bishop v. Hayward. Opinion of Justice Buller. See also 2 Burrows, 681 and 682, opinion of Lord Mansfield, “ it may be his own pond or his own fish, for any thing that appears to the contrary.” Opinion of Justice Denison, “It does not appear, that the fish he killed, were not his own or killed in his own ponds.”
    And in this ease it may with the same force'be said, it does not appear, that the “Ardent Spirits,” or (as we may presume it was a composition,) that the composition was not compounded and intended to be used as medicine. Or in the language of Lord Mansfield, for aught that appears to the contrary in this indictment, it may be a composition compounded and intended to be used as a medicine; and if so, the defendant is improperly convicted. And it would be a good reason in arrest of judgment: if so, the indictment, for the same reason may be quashed. 4 Halst. 296, State v. Richey. Argument of Counsellor Halsted and opinion of Justice Drake. 1 Harrison’s Rep. 133, Farwell et al. v. Smith.
    
    But it may be answered, that admitting the rules of pleading to have been so settled, yet this section of the law was intended to abrogate it, and make it a sufficient description of the offence, to describe the liquor sold as Ardent Spirits, without negativing the exceptions.
    But such is not the case. The statute only intended to help or aid the description of the liquor sold, and not of the offence created by the previous section of the act.
    It does not say, that in all indictments hereafter found upon this act, it will be a sufficient description of the offence, to charge the party with having sold “Ardent Spirits ” contrary to the statute — but simply, that when you charge a party with an unlawful selling, it shall be a sufficient description of the liquor sold, to call it “Ardent Spirits.”
    The Legislature never intended to alter, modify, or destroy, that well established and most reasonable rule of pleading, which in the like cases require the negativing of all exceptions in-the enacting clause creating the offence.
    There was no reason for it, and if no reason, there could never have been intended such a law.
    It may be objected to the above argument, that inasmuch as in an indictment for selling a composition, it is necessary not only to aver of what it is composed, (that the Court may take notice from the record or indictment whether it be a composition or not,) but also which particular liquor shall form the chief ingredient. The indictment will present the following or somewhat like ridiculous description of the offence, viz : that A. B. on such a day, at &c. without license &e. unlawfully did sell or cause or knowingly permit to be sold, &c. &c. certain Ardent Spirits, then and there compounded of Ardent Spirits (and whatever else it may be) of which, Ardent Spirits did then and there form the chief ingredient.
    But a simple reference to two particular words of the fourth section will dispel this apparent incongruity — the words, “ kind or description thereof.”
    Before the sixth section was passed, it was doubtless necessary to aver of what the composition was made, and also the particular liquor which formed the chief ingredient. So also, in the ease of selling mixed liquors, I apprehend it would have been necessary for the prosecution to specify the simples comprising the mixture, that the Court might take cognizance from the indictment itself, whether they were such liquors mixed, as the selling thereof constituted the offence.
    But the language of the sixth section is so definite and expressive, that it is impossible to resist its force. “It shall be sufficient to describe the liquor sold, (whether simple, compound, or mixed,) as “Ardent Spirits,” and not only so, but also without specifying particularly the hind, (referring to the simple,) or description thereof; (referring undoubtedly to the composition and mixed liquors).
    You need not specify the “ particular kind ” of simple liquor, nor give a “particular description” of the composition or mixed liquors, is in effect the language of the statute.
    It shall be sufficient to describe the liquor sold, “ whether simple, compound or mixed,” as “Ardent Spirits,” without specifying particularly the “ kind ” of simple liquor and without giving a particular description of the composition or mixed.
    “ Description ” cannot be predicated of a simple; but “ kind ” can. “ Kind ” cannot be predicated of a compound or mixture, but “ description ” may.
    On the second point, see Chitty Crim. Law. 289-292; Yelv. 116; Arch. Crim. Pl. 54, bottom.
   The opinion of the Court, delivered by

Hoksblower, C. J.

This is an indictment for selling “Ardent Spirits, by less measure than one quart, without license &.e” and it concludes, against the form of the statutes,” &c.

Two exceptions are taken to this indictment: First, that it does not aver, that the Ardent Spirits sold, had not been compounded and intended to be used as a medicine: and Secondly, that it concludes, against the statutes: when in fact there is now, but one statute on this subject.

It is time the principal question in this case should receive a quieting answer from this court. ■ It has been frequently raised before the court of Oyer and Terminer, and the Quarter Sessions of the Peace of the several counties, and has received differen-t, and sometimes contradictory answers: and I'have lately perceived, that indictments have been drawn differently in different counties, according to the opinions, or the caution of the different prosecutors. I think the statute admits of a plain and easy construction, and the question propounded, susceptible of a simple and satisfactory answer.

By analyzing the statute and considering its different parts, we shall see its meaning and the intention of the legislature. To do that, I need not incumber this opinion with a copy of the act, but will proceed to state the substance of its enactments.

1. In the first place it forbids the sale of wine, gin, rum, brandy, whiskey, cider spirits and all other kind of Ardent Spirits, by a less quantity than one quart, without a license &c.

2. It prohibits the sale by a less quantity than one quart, of any “ composition ” of which wine, or any of the liquors above mentioned, shall form the chief ingredient, except such as shall be compounded and intended to be used as a medicine.

3. It prohibits the sale of any “ mixed liquors ” by a less quantity than five gallons.

Here there are three distinct offences- created by the statute. An indictment for the first offence, (in the order above stated,) must charge, that the defendant, without license first had and obtained for that purpose, sold, by a less quantity than one quart, to wit: so much wine, rum, gin, brandy, whiskey or cider spirits, naming the liquor according to the fact: or to avoid the danger of being defeated on the trial by failing to prove the kind of liquor named in the indictment, the prosecutor under the remedial provision of the sixth section of the act, Elm. Dig. 249, may charge the defendant with selling “Ardent Spirits ” by a less quantity &c. and without license. To support such an indictment, the prosecutor must prove, that the defendant sold the precise kind of liquor named in the indictment; or if the indictment is for selling “Ardent Spirits,” he must prove on the trial, fhat he sold one of the simples named in the statute, viz: Wine, rum, gin, brandy, whiskey or eider spirits.

In an indictment for the second offence, the defendant must be charged with selling by a less quantity than one quart, “a composition,” not compounded and intended to be used as a medicine, of which wine, gin, rum, brandy, whiskey or cider spirits, formed the chief ingredient; specifying which of those simples prevailed in the composition, and such an indictment must be proved as laid, or the defendant cannot be convicted.

The third offence consists in selling “ mixed liquors ” by a less measure than Jive gallons; and whatever may be meant by the term “ mixed liquors,” the indictment must be for selling “mixed liquors” by the name, by which the particular mixture is generally known. An indictment in the words of the statute,, viz: for selling “ mixed liquor,” would not in my opinion, be sufficient. Liquor,” the dictionary informs us, means any thing liquid; but milk and water, or water and vinegar, or tea and coffee, are liquors, and may be mixed; and when mixed, are mixed liquors. The legislature did not mean to prohibit the sale of such mixtures by a less quantity than five gallons; they no doubt intended to forbid the sale, by unlicensed persons of a mixture of intoxicating drinks, in a less quantity than five gallons. In my opinion therefore, an indictment under this clause of the statute, must show what the mixture was composed of, and that it consisted of some one or more of the different kinds of Ardent Spirits or intoxicating liquors mentioned in the statute. And I am further of opinion that to support such an indictment, the prosecutor must prove the facts as laid.

In opposition to all this, it has been ingeniously and laboriously argued by the defendant’s counsel, that by force of the sixth section of the statute, in all indictments found under it, “ it shall be sufficient to describe the liquor sold, as Ardent Spirits, without specifying particularly, the kind or description thereofAnd hence he argues, that in all indictments, the prosecutor should state, that the liquor or the ardent spirits sold, had not been compounded or intended to be used as a medicine. No doubt, if his main proposition is right, he is right also in his conclusion. For if a man may be indicted for selling a composition by the name of Ardent Spirits, the indictment ought to aver, that it had not been compounded and intended for a medicine; since the statute excepts from its prohibition, the sale of any composition, prepared and intended to be used as a medicine. It is a well settled rule, and the cases cited by defendant’s counsel fully establish it, that an exception, in the description of an offence, created by statute, is different from a proviso, which exempts from the penalty under certain circumstances. In the former ease, the absence of that matter, or the non-existence of those facts, the absence or non-existence of which, is necessary by the statute, to constitute the offence, must be averred in the indictment; or rather, their existence must be negatived. But the latter being mere matter of excuse or defence, need not be negatived in the indictment, but must be proved by the defendant if he would nave the benefit of it. It is upon this principle, that indictments under this statute have always, so far as I know, contained the clause “ not having first obtained a license.” ' If on the contrary, after prohibiting the sale of Ardent Spirits by the small measure, the statute had annexed a proviso, that a person having a license; or under the age of twenty-one years, should not be liable to conviction and punishment, a license or minority, would be matter of defence to be shown by the defendant. The following among others are cases showing and illustrating this distinction, viz: Spieres v. Parker, 1 T. R. 141; Palmer’s case, Leach C. C. 120; Rex v. Jukes et al. 8 T. R. 542; 1 Saund. 262 in note; Gill v. Scrivens, 7 T. R. 27; 1 Str. 66, Rex v. Sparling; Id. 497, Rex v. Ford; Id. 555, Rex v. Pratten; 6 T. R. 559, Rex v. James, 1 Burr. R. 153; 1 T. R. 145, Rex v. Stone; 1 Fast, 646 in note; Rex v. Brian, 2 Str. 1101; 1 Chitt. Crim. Law 283; 1 Burr. 153; 15 East, 456; Rex v. Hill, 2 Ld. Raym. 1415; Id. 1386; 1 T. R. 127; 4 Id. 472; 2 Burr. 681.

But it is a mistake to suppose, that all indictments under the statute, must, or may be, for selling Ardent Spirits. There is no rule of construction better settled, than that general words, may be restrained to meet the particular intent of the legislature. Now what was that intent? We all know the history of legislation upon this subject. Under the original statute, it was necessary to specify in the indictment, when a man was indicted for selling wine, or any kind of ardent spirits, whether it was wine, rum, gin, brandy, whiskey or ciders pirits. The consequence was, that prosecution often failed, by reason of the bad memory or worse morals of the witnesses, who could not tell the difference between gin and brandy; or could not remember, which it was, they had bought and drank. And no doubt too, mistakes were often made in charging the liquor sold to be one kind, when in fact it was another. This difficulty never arose on indictments found for selling compositions or mixtures ; but only on indictments for selling some of the specified liquors. It was then to remedy this difficulty upon indictments under the first clause of the statute, that the sixth section was introduced into the present act. We must then understand that section as meaning no more than that, in all indictments, for selling wine or any of the simple liquors mentioned in the statute, it shall he sufficient to describe the liquor sold, as Ardent Spirits. But again, the application of this section to the second and third clauses of the statute, would lead to absurdity, and this is another reason for restraining the word “all” in the manner suggested. Suppose, for instance, we substitute the word “Ardent Spirits” for the word “ Composition,” in the second clause of the statute; how will the indictment read? For selling Ardent Spirits of which rum, or gin, or brandy • or of which Ardent Spirits, was the chief ingredient.

But it is said, the indictment should be for selling a composition, of which “Ardent Spirits” formed the chief ingredient. That however, would not be a compliance with the statute. The statute authorizes us to call “the liquor sold” Ardent Spirits; not the chief ingredient of the liquor sold. But the impropriety of extending the application of the sixth section to all indictments under this statute, is more palpable, when considered in reference to the third offence created hv the act; that prohibits the selling of mixed liquors, by a less quantity than five gallons, without a license. The indictment then, would charge the defendant with selling Ardent Spirits, by a less measure than five gallons. And yet we have no law forbidding the sale of Ardent Spirits by the quart, the half gallon, the gallon or by any quantity, not less than a quart. The indictment then, would charge the defendant with no offence.

In my opinion therefore, the word “all” in the sixth section must be restricted to all indictments found under the act for selling any of the simple, unmixed liquors named in the act: that indictments upon the second clause of the act, must be for selling a composition, not compounded or intended to be used as a medicine, the chief ingredient of which, is Ardent Spirits, or one of the simple liquors mentioned in the act naming it. And that indictments upon the third clause of the act must be for selling a mixed liquor, commonly called so, whatever its appropriate name may be.

As to the conclusion of the indictment, against “ the statutes,” I think there is nothing in the objection. In Rex v. Johnson, 3 M. and S. 553, cited in 10 Petersd. Abr. 485, in margin, the. court said, the conclusion of an indictment forms so material a part of it, that for any defect in it, the indictment is ill. And yet in Rex v. Matthews, 5 T. R. 152; and in Rex v. Bathurst, Sayr. R. 225, it was held that if the indictment was good at the common law, the contra formam statuti, might be rejected. And see The State v. Berry, 4 Halst. R. 374. So it has been held, that an indictment concluding against “ the statute ” when in fact it was against two statutes, was good; and I do not see why a conclusion against the statutes, when there is only one statute, should not be equally good. And I understand it has been so decided by Mr. Justice Story, in United States v. Gilbert et al. 3 Sumn. Cir. C. R. 88; 2 Peters’ Dig. 447, sec. 51.

Both objections must be overruled, and judgment given for the State.

Motion to quash denied. Judgment for the State,

Cited in State v. Dayton, 3 Zab. 61.  