
    Bilbro vs. The State.
    In an indictment for a misdemeanor a substantial description of an offence, is all that is required.
    Bilbro was convicted in the Circuit Court of Haywood county, Judge Read presiding, upon an indictment, which charged, that he “did unlawfully sell and retail spirituous liquors to one Edmond White by the quart, to be drank on the premises, and which was then and there drank on the premises of him the said Bilbro, without having obtained a license so to do.”
    From this conviction he appealed.
    Richardson, for the plaintiff in error.
    The presentment alleges, that the defendant below, “sold spirituous liquor by the quart, to be drank on the premises,” &c. This is not a sufficient allegation; it does not charge the “intent.” The act of 1779, ch. 10, sec. 3 and 12, defines the meaning of the term “retail.” It means the selling of spirits in less quantity than a quart, or greater quantity than a quart, “if intended to be drank on the plantation where sold. Dyer vs. The State, Meigs, 237. There are two indictable offences declared by this act. The first one is, the selling of a quantity less than a quart. The second one is, the selling by the quart or greater quantity, if intended to be drank where sold. The quantity constitutes the offence in the first case, and the intent makes the offence in the second. Sanderlin vs. The State, 2 Hum. 319. This court said, in this case, that “the statute makes the sale an offence, if the party selling intended the liquor to be drank on the plantation,” that the “intent is enough to allege in the indictment.” When the evil intent constitutes a material part of the offence, it ought fo be charged: 1 Chit. Cr. Law, 233, 245; 6 East, 474; 4 T. Rep. 129. The same doctrine is recognized and declared by this court in Fergus vs. The State, 6 Yerg. 352. The presentment must bring the case within the words of the statute, at least substantially. 2 H. P. C. 168, 192; same case in 6 Yerg. 353. From the above authorities, it is clear, that the presentment is deficient in a material allegation; not charging the intent.
    The word intent, in some of its inflections, is the only word used, in our statutes, to signify the quo animo of an action; and hence it becomes a material technicality in the description of offences, in which the quo animo becomes a material part. No other word could be substituted for it, much less can it be omitted. In this case there is no substitution, but a palpable omission. The phrase “sold liquor to be drank” in the presentment, can not, by any construction, be made to signify the intent which the vendor had in his mind when the liquor was sold. “To be drank” signifies the act done or performed to the object “liquor*’ and not the intention, which may have existed in the mind of the vendor, at the moment of sale. There is clearly, an ellipsis in this phrase, which can not be filled by intendment. The words “not intended” or any other negative allegation, could supply the omission, with as little violation of the rules' of syntax, or good sense, as the word “intended.” The charge must be sufficiently explicit to support itself, for no latitude of intention can be allowed, to include any thing more than is expressed. 1 Chitty’s Crim. Law, 117, top page.
    
      Attorney General, for the State.
   Turley, J.

delivered the opinion of the court.

This, a prosecution on the part of the State against J. J. 'Bilbro for vending spirituous liquors by the quart, to be drank on the premises; and it is now objected, that the bill of indictment is bad, in charging, that the liquor was sold to be drank on the premises. The statute of 1779, ch. 10, which creates the offence for which the defendant stands charged, uses the words “if intended to be drank,” and the argument is, that the word intend should have been inserted before the words “to be drank,” so as to make the indictment read “with the intent to be drank.” This would certainly have been pursuing the literal wording of the statute. But this, we think, is not necessary in the case of a misdemeanor, a substantial description of the offence is all that is required. This, we think, has been given in this case; the words “to be drank” certainly mean “with the intent to be drank,” for it is difficult, if not impossible, to see how the defendant could have sold spirituous liquors “to be drank” upon his premises, unless he at the time intended they should be drank.

Affirm the judgment.  