
    ISBELL vs. THE STATE.
    See Hays vs. the State, ante page
    Hendrick, for the appellant:
    The eeurt erred in refusing to instruct the jury as requested hy the defendant; also in giving instructions which were, objected to by defendant.
    Where it is charged in the indictment,, that the persons to whom the liquor is sold, are unknown t® the grand jury, this averment amounts to an allegation that the persons to who-m the liquor is sold, are persons whom the grand jury do not know; that they are strangers to the-grand jury. Therefore, upon the trial, if it appear that the persons to whom the liquor was ¡sold, .are persons known to the grand jury, the variance is fatal and the defendant ought to-be acquitted. A different doctrine wou-l.d. subject the defendant to he tried! and convicted upon -two indictments for the same offence;, for it might well happen that one witness would testify to the grand jury of a selling of liquor to persons unkppwn to the witness, and of whom he -could not testify, and upon that testimony, a hill like the present he found; and afterwards another witness would testify to the grand jury of the same case and give the names of the persons to, v^hom the liquor was sold. In such cases, a man would, according to the doctrine ¡that prevailed in the circuit court, be tried and punished in both cases and, for one single act.,
    Stringfellow, Att’y. Gen’], for the State:
    1., It was aot necessary to aver to-whom the-liquor was sold, or that-i.fcwas sold to persons; unknown. State vs. Buford 11 Mo. Rep. In that case no such account was made.
    2, It will hardly he insisted that a party charged with selling to a person unknown to the-grand jury,, is to be acquitted on its appearing that he also sold to some person known to theip..
   Judge Birch,

delivered the opinion of the court:

As this case depends precisely upon the same question that, was passed; apon by this court during its recent ter.m at St. Louis,the opinion im that ease, (Hays vs. the State) need only, be referred to as-embodying; sufficient reasons for affirming the judgment of the circuit court in the-present one. It is accordingly affirmed,  