
    Brock v. Commonwealth.
    June, 1836.
    Ardent Spirits- -Indictment for Retailing: — Case at Bar. —Upon an indictment for retailing- ardent spirits, specifying tne precise quantity and the kind, to be drunk where sold, without licence, proof of retailing any quantity of any kind of ardent spirits to be drunk where sold, is sufficient.
    Petition for a writ of error to a judgment of the circuit superiour court of Nicholas. An indictment was found against Brock, charging, that he did, at his own house, sell ardent spirits by retail, by the pint and half pint, to one W. L. to be drunk where sold, and did sell to the said W. L. one pint and one half pint of whiskey, and did suffer and permit him to drink the said whiskey so sold by retail at the place where sold, without licence for that purpose previously obtained, contrary to the statute &c. Plea, not guilty. At the trial, the defendant’s counsel moved the court to instruct the jury, that to justify them in finding a ver-diet of guilty, they *must believe from the evidence, that the defendant sold one pint and one half pint of whiskey to be drunk where sold; but the court refused to give the instruction, and instructed the jury, that if they should find, that the defendant sold by retail ardent spirits to be drunk where s.old, that would be sufficient to sustain the indictment, though the precise quantity of a pint and a half pint should not be proved to have been sold; to which the defendant excepted. Verdict guilty; judgment for the fine of 30 dollars, and security required of the defendant for his good behaviour for one year.
    To this judgment, the petitioner prayed a writ of error. And Price argued, that the court below erred, 1. in refusing the instruction asked for by the defendant’s counsel, and 2. in the instruction which it gave to the jury: for as the prosecutor had charged the defendant with retailing a particular quantity of a particular kind of ardent spirits, he was bound to prove the charge precisely as laid ; but the court exempted him from strict proof, not only of the quantity, but of the kind, of spirits retailed ; in other words, allowed proof of a different offence from that charged, to convict the defendant of the offence charged, in the indictment. He cited Winston’s case, -4 Leigh 680.
    
      
      See monographic note on "Intoxicating Liquors” appended to Thon v. Com., 31 Gratt. 887, and mono-graphic note on "Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.
    
   PER CURIAM

Writ of error denied.  