
    The Commonwealth v. Samuel Welsh.
    i. Intoxicating Liquors — Information — Allegations — Second Offence. — A Defendant cannot be punished by imprisonment for six months, for retailing spirituous liquors, under the 5th section of the Act of 1792, unless the Information charge that it is a second offence after haying been convicted of a similar offence: nor can he be so punishable, unless the second offence be committed after the conviction of the first.
    
      
      See monographic note on '‘Intoxicating Liquors” appended to Thon v. Com.. 31 Gratt. 887; mono-graphic note on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.
    
   Adjourned Case from the Superior Court of Isle of Wight county. The Defendant was presented twice on the same day, by the same Grand Jury, for retailing spirituous liquors to be drank at the place where sold, without license. Each Presentment charged the offence to have been committed within six months last past. The one Presentment charged the liquor to have been retailed to one person, and the other to another. The Defendant having been summoned in each Case to shew cause why an Information should not be filed against him, and failing to shew cause, the Attorney for the Commonwealth was permitted to file *them. Each Information charged the offence to have been committed on the 3d day of September, 1815. The Defendant was regularly tried, and convicted on the first Information, and judgment for the fine of thirty dollars, (the fine affixed by the Act,) and the costs, rendered against him.

On the second Information, he was also regularly tried, and convicted; and, thereupon, the Attorney for the Commonwealth moved the Court, in this case, to render judgment of imprisonment, for and during the term of six months, against the Defendant, because, on the same day that the Defendant appeared in Court, in his proper person, and by his Attorney, and defended this Information, for retailing spirituous liquors, without a license to do so, he also appeared in Court, in his proper person, and by Attorney, and defended another Information, for a similar and distinct offence, of retailing spirituous liquors, without a license to do so, so that the Defendant appeared to the Court to be the same person, and was convicted of that offence, and fined, This motion was opposed by the Defendant, because the Information in this Case does not state that it is an Information for a second offence, of retailing spirituous liquors, without license, after having been before convicted of a similar offence.

The, Court thereupon adjourned to the General Court, the question whether it ought, in the present Case, to render judgment of imprisonment against the Defendant, for six months, in pursuance of the 5th section of the Act, entitled, “An Act for regulating Ordinaries, and restraint of Tippling-houses.”

The 4th section of the Act declares, that the person guilty shall forfeit thirty dollars. The 5th section declares, that “every person having been convicted of keeping a Tippling-house, or retailing liquors, as aforesaid, who shall afterwards be guilty of the same offence, and be thereof again convicted, shall be committed to prison, there to remain for and during the term of six months,” &c.

The judgment of the Court is as follows:

“The Court is unanimously of opinion, that the Superior Court of haw of Isle of Wight county ought not to render judgment of imprisonment against the Defendant, in this Case: which is ordered to be certified.” 
      
       1 Rev. Code of 1792, ch. 107, § 5. See 2 Rev. Code of 1819, ch. 240, § 10.
     