
    Chevalier vs Commonwealth.
    Error to the Jefferson Circuit.
    Presentment.
    
      Case 86.
    
      June 7.
    
      Retailing spirits, malt ancl fermented liquors.
    
    statute of ’t is a penal difence to spiritous, iit or fermented. liquors by the quart or less than gt¡uart, or more than a quart, in the cityofLouisviile, where it is diank in the house of the vendor.
    No conviction can take place upon a presentment, unless for Die particular of-fence charged..
   Judge Simpson

delivered tlie opinion of the Court.

The act of 1838, to amend the charter of the city of Louisville, (Sess. Acts, page 55,) imposes a penalty upon any person who shall sell by retail, in any quantity less than a quart, any spirituous, malt or fermented liquor in said city, without license of the Council.

By an act passed in 1839, (Sess. Acts, ngf'e act of 1838 is so amended that no personas" under a similar penalty, to sell by retail any spiritous, malt or fermented liquor, byI less than a quart, or more than a quart, w^enj the house, without a license from the Count

These statutes are entirely consistent with ea&folher, and specify two distinct offences against the laws of the city. One offence consists in selljng by retail, any quantity less than a quart, without a license; the other consists in selling any quantity whatever, where it is drank in the house of the person selling it, whether it be more or less than a quart, without having obtained a license for that purpose.

The presentment in the present case, is for a violation of the latter statute. The offence charged, is a sale by the defendant of spiritous, malt and fermented liquors, by retail, in quantities of a quart, more than a quart, and less than a quart, which was drank in the house of the defendant, in the city of Louisville. The proof tended to establish a violation of the former statute, but there was no testimony conducing to prove that the liquor sold had been drank in the house of the defendant, so as to bring it under the latter statute. The evidence, therefore, did not support,the presentment ; and although the defendant may have been guilty of the violation of another statute, that did not authorize a conviction under this presentment, for an entirely different and distinct offence.

Thruston and Pope for plaintiff; Cates, Attorney General, for Commonwealth.

The Court erred, therefore, in refusing to instruct the jury, it was incumbent on the Commonwealth to prove that the liquor sold by-the defendant- had been drank in his house.

Wherefore, the judgment is reversed and cause remanded for a new trial, and further proceedings consistent with this opinion.  