
    *Commonwealth v. Young.
    January Term, 1860,
    Richmond.
    (Absent Auden, I5., and Lius, J.)
    1. Retailing Ardent Spirits — Indictments.†—in an indictment under 118, ch. 38 of the Code, p. 209, for retailing ardent spirits, the words “not to he drank where sold,” not being in the statute, need not be in the indictment.!
    2. Same — Same.i f — In an indictment under § 18. ch. 88 of the Code, the words “without having a license therefor according to law." are not equivalent to the words “without paying such tax and obtaining such certificate as is prescribed by the 14th section,” which are the words used in the statute; and the indictment is defective.
    
    3. Indictments  — Statutory Offence — Description oí 1,1 fence.ti — in an indictment for a statutory offence, it is generally proper and safest to describe the offence in the very terms used by the statute for the purpose. Bui it is sufficient to nse in the in dictment such terms of description, as that, if true, the accused must of necessity be guilty o! the offence described in the statute.
    4. Same  — When Insssfficient.— If the indictment may be true, and still the accused may not be guilty of the offence described in the statute, the indictment is insufficient.
    
      At the October term 18S8 of the Circuit court of Jackson county, the grand jury indicted Henry Young, for that he “unlawfully and without having a license therefor according to law, on the home farm of Charles Carney, in the said county of Jackson, and within the jurisdiction of the Circuit court for said county, did sell, by retail, wine, ardent spirits, and mixtures thereof, contrary to the form of the statute,” &c.
    At the Hay term of the court for 18S9 the defendant appeared, and moved the court to quash the indictment; which motion the court sustained. And thereupon the commonwealth applied to this court for a writ of error; which was allowed.
    *The Attorney General, for the commonwealth.
    There was no counsel for the appellee.
    
      
      Tli.ey were sitting in the Special court of appeals.
    
    
      
      Retailing Ardent Spirits — Indictments. - See principal case cited in Arrington v. Com., 87 Va. 96, 12 S. E. Rep. 224; State v. Church, 4 Va. 748; State v. Cain, 8 W. Va. 738.
      See Boyle’s Case, 14 Gratt. 674; monographic note on “Intoxicating Liquors” appended to Thon v. Com., 31 Gratt. 887.
    
    
      
       Saiiie — Same.—See monographic note, on “Intoxicating Liquors” appended to Thon v. Com., 31 Gratt. 887.
    
    
      
      See Judge Moncure’s opinion for the statute.
    
    
      
       Indictments — Statutory Offence — Description of it.o Offence. — “Judge Monoukk, in delivering the opinion of the court in Commonwealth v. Young, 16 Gratt. 666, said: 'In an indictment for a statutory offence, it is generally proper and safest to describe the of-fence in the very terms used by the statute for that purpose. But it is sufficient to use in the indictment such terms in the description, as that, if true, the accused must of necessity be guilty of the of-fence described in the statute; and especially so in a case falling, as this does, in that class, concerning which the law provides, that “no exception shall be allowed for any defect or want of form in the presentment, indictment or information, but the court shall give judgment thereon according to the very right of the case.” Code, ch. 207, sec. 2-1, p. 772. * * 1 adopt the language of the learned judge, because in my view, it not only clearly enunciates the true principle, bnt is exceedingly ajrm'opos in this case.” Moore, J., delivering the opinion of the court in State v. Riffe. 10 W. Va. 797.
      The principal case was also cited and approved a» to this proposition in Dull v. Com., 25 Gratt. 874; Morgenstern v. Com., 27 Gratt. 1020; Benton’s Case, 91 Va. 793, 21 S. E. Rep. 495; State v. Charlton, 11 W. Va. 334; Cousins v. Com., 19 Gratt. 812, and foot-note; State v. Boggess, 36 W. Va. 719, 15 S E. Rep. 425; foot-note to Burner v. Com., 13 Gratt. 778; foot-note to Taylor v. Com., 20 Gratt. 825; State v. Cain, 9 W. Va. 564.
      Same — inference.—See principal case cited in footnote to Boyle’s Case, 14 Gratt 674.
    
    
      
      Same — When Insufficient. — in State v. Bruce, 26 W. Va. 157, it was said: “In Young’s Case, 15 Gratt. 664-66, the court, after quoting the Virginia statute, says: ‘If the indictment may be true, andsliii the accused may be not guilty of the offence, the indictment is insufficient, even though it fall within the class to which the provision aforesaid refers. This decision shows plainly that the statute does not cure the defect in the indictments now before us; for, as we have seen, every averment they contain may be true and still the accused may not be guilty of a subsisting, indictable offence.” See also, the principal case cited and approved as to this proposi - tion in Morgan v. Com., 26 Gratt. 993; State v. Riffe.. 10 W. Va. 797; State v. Cain, 9 W. Va. 564. See, in accord, Glass v. Com., 33 Gratt. 832, and foot-note, where the principa) case is cited.
    
    
      
      oncerning each of the propositions contained in the syllabus and foot-note to this case, see, further, monographic note on “Intoxicating Liquors” appended to Thon v. Com., 31 Gratt. 887; monographic note on “Indictments” appended to Boyle v. Com.. 14 Gratt. 674.
    
   MONCURB, J.

This is a -supersedeas obtained by the commonwealth to a judgment of the Circuit court of Jackson county quashing an indictment against Henry-Young, for that he, “on the first day of October in the year one thousand eight hundred and fifty-eight, unlawfully, and without having a license therefor according to law, on the home farm of Charles Carney, in the said county' of Jackson, and within the jurisdiction of the Circuit court for said county, did sell, by retail, wine, ardent spirits, and mixtures thereof, contrary' to the form of the statute in such case made and provided, and against the peace,” &c.

The indictment was no doubt intended to be for the offence described in the first branch of § 18, ch. 38 of the Code, p. 209; which section is in these words: “If any person shall, without paying such tax and obtaining such certificate as is prescribed by the 14th section, sell, by retail, wine, ardent spirits, or a mixture thereof, he shall forfeit thirty dollars. And if any person sell, by retail, wine, ardent spirits, or a mixture thereof, to be drank in or at the store, or other place of sale, he shall, unless he be licensed to keep an ordinary at such store or place, forfeit thirty dollars. ’ ’

No counsel appeared for the defendant in error in this court; and it does not appear what specific objections were made to the indictment in the court below, except from the petition for the supersedeas and the argument of the attorney general. From them it appears the objections were twofold: First, that the words “not to be drank where sold,” are not in the indictment; and secondly, that the words “without having a license therefor according to law,” are used *in the indictment, instead of the words “without paying such tax and obtaining such certificate as is prescribed by the 14th section,” contained in the statute.

To the first objection, it is a sufficient answer, that the words “not to be drank where sold,” are not in the statute, and therefore need not be in the indictment.

The second objection is a more serious one. In an indictment for a statutory offence, it is generally' proper and safest to describe the offence in the very terms used by the statute for that purpose. But it is sufficient to use in the indictment such terms of description, as that, if true, the accused must of necessity be guilty of the offence described in the statute; and especially so in a case, falling, as this does, in that class, concerning which the law provides, that “no exception shall be allowed for any defect or want of form in the presentment, indictment or information, but the court shall give judgment thereon according to the very right of the case.” Code, ch. 207, § 24, p. 772. If the indictment may be true, and still the accused may not be guilty of that offence, the indictment is insufficient, even though it fall within the class to which the provision aforesaid refers. Bet us apply this principle to the present case, and enquire, whether the words “without having a license therefor according to law” in the indictment, are a sufficient substitute for the words “without paying such tax and obtaining such certificate as is prescribed by the 14th section,” which are material terms of description used in the statute? In other words, whether, if the indictment be true, the accused must of necessity be guilty of the offence described in the statute? May he not have retailed ardent spirits “without having a license therefor according to law,” and still not “without having paid such tax and obtained such certificate” *as aforesaid? To enable us to answer this question, it will be necessary to notice briefly the sections of chapter 38 of the Code which precede the 18th section (on which the indictment in this case is founded), and relate to the same subject.

The 10th section declares, that “no person shall, without obtaining a license as a merchant, sellat anystore,” &c., “any goods,” &c., “except,” &c. “Any'person who shall violate this section, shall pay a fine of not less than twenty nor more than two hundred dollars.”

The 11th, 12th and 13th sections relate to the tax to be paid for the license.

The 14th section, which is expressly referred to in the first branch ,of the 18th (on which the indictment in this case is founded), is in these words: “If the merchant shall desire his license to include permission to sell, by' retail, wine, ardent spirits, or a mixture thereof, he shall phy the additional tax prescribed for this privilege, and obtain from the court of the county' or corporation in which his store or place of sale is situated, a certificate that he is a person of good character, and that the court sees no-objection to such permission being granted.”

If this had been all, it might well have been contended, that upon the mere payment of the additional tax and obtaining the certificate mentioned in the 14th section, the merchant’s license (in addition to its general effect under the 10th section), became, ipso facto, a license to retail ardent spirits; and therefore that the word “without having a license therefor according to law,” in the indictment, were equivalent to the words “without paying such tax and obtaining such certificate” as aforesaid in the statute.

But the 15th section follows in these words: “Such certificate shall be produced, with the receipt for the *tax, to the commissioner, who shall grant to the merchant such licen.se as he may be entitled to. The license shall, in addition to what is prescribed by the second section, state the fact of such certificate, and the situation of' the store or place of sale. If the person applying for such license asks that it shall be to him as a commission merchant, the commissioner shall so express on its face. ’ ’

So that if a merchant desire his license to include permission to retail ardent spirits, he is not only required by the 14th section to pay the additional tax and obtain the certificate therein mentioned, but is directed by the loth section to obtain a license which will include such permission on its face. If he comply with the requisition of the 14th section, he will be entitled as a matter of course to such a license, upon the mere production of such a certificate with the receipt for the tax to the commissioner, as directed by the 15th section. A penalty is imposed by the 18th section on a person who retails ardent spirits without having complied with the requisition of the 14th section; but not on a person who does so without having complied with the direction of the 15th section. The indictment in this case is for the latter act; that is, for retailing ardent spirits “without having a license therefor according to law.” This plainly refers to the license mentioned in the 15tfi section, which includes on its face permission to retail ardent spirits; and not to the general merchants’ license mentioned in the 10th section. The indictment may be true, and still the accused may not be guilty of the offence described in the statute, and therefore the motion to quash it was properly sustained.

The construction I have put upon the law in question, not only agrees with its literal meaning, but with the probable intention of the legislature. It would *have been at least as easy to have said, “without license therefor,” as to say, ‘ ‘without paying such tax and obtaining such certificate as is prescribed by the 14th section;” and the former would no doubt have been said, if it had been intended by the legislature. In every other instance, I believe, in which a license to do an act is required to be obtained, the law imposes a penalty on doing the act without license; not on doing it without paying the tax required to be paid. The difference of phraseology in this instance indicates a difference of intention; for which, indeed, there seems to be some reason. But whether there be or not, the literal import of the law is sufficiently plain; and, being a penal law, it must be construed strictly.

There are two decisions of the late General court, which would seem at first view to be in conflict with the conclusion to which I have come; but, upon examination, they will be found not to be so. I mean Peers’ Case, 5 Gratt. 674, and Hatcher's Case, 6 Id. 667. In each of these cases the indictment was for retailing ardent spirits not to be drank where sold, without having-obtained a license therefor; and yet was held to be sufficient. But they were founded on the act of March 7, 1834 (Sess. Acts, ch. 3, p. 7), or the act of March 3, 1840 (Sess. Acts, ch. 2, p. 5), which acts are almost identical; the 3d section of which subjects to the penalty therein mentioned, any person, &c., who shall, otherwise than as thereinafter expressly provided, retail ardent spirits, &c. ; and the Sth section of which provides, that if any person, having obtained a merchant’s license, &c., shali, in addition thereto, have obtained a certificate as therein mentioned, he shall, “by virtue of such certificate, but not otherwise, be authorized, during the time for which his merchant’s license may have been granted,” to retail ardent spirits, &c. In an indictment on either of these acts, the *words “without having obtained a license therefor,” were plainly equivalent to the words, “without having-obtained a merchant’s license and certificate, as required by the 5th section.” The merchant’s license and certificate together constituted a license to retail ardent spirits. After the certificate was obtained, nothing more was directed by these acts to be done. In this respect, they materiallv differ from the Code.

I think there is no error in the judgment, and am for affirming it.

DANISH and ROBEJRTSON, Js., concurred in the opinion of Moncure, J.

Judgment affirmed.  