
    Case 58 — MISDEMEANOR
    February 5, 1881.
    The Commonwealth v. Wheeler.
    APPEAL EROM MADISON CIRCUIT COURT.
    '•1. No penalty has been denounced against a person not a merchant for selling vinous or spirituous liquors when they are not drunk on the premises where sold, or adjacent thereto.
    :2. Before a person is required to obtain a license to sell whisky, he must be engaged in merchandising, and in the sale of other things than Spirituous liquors.
    
      P. W. HARDIN, ATTORNEY GENERAL, AND C. J. BRONSTON FOR APPELLANT.
    The word merchant is comprehensive. One who engages solely in the traffic or sale of liquors is a merchant. If this he not the case, a party who is in good faith a merchant must obtain license to sell, while a party who is not a merchant may sell as much whisky as he chooses without license, provided it is not drunk on his premises, or adjacent thereto.
   JUDGE HINES

delivered the opinion of the court.

Appellee was indicted for merchandising liquor, the specification being that he sold one quart of whisky to Vincent & Warren without license authorizing him so to do. The-evidence established that appellee was a farmer; that he kept a barrel of whisky at his residence for sale in small quantities ; that he kept nothing else for sale; that he sold thewhisky as charged in the indictment, and that he had no license therefor. On the conclusion of the evidence, the jury, under a peremptory instruction, found the accused not guilty. The commonwealth on this appeal questions the correctness of the ruling of the lower court in giving the instruction.

The ruling of the lower court was correct. By an unaccountable oversight of the law-making department of the-government no penalty has been denounced against such selling of spirituous or vinous liquors when they are not. drunk upon the premises where sold or adjacent thereto.

The third section of article 35 of chapter 29, General Statutes, provides, that one having no license therefor who shall sell, in any quantity, wine or spirituous liquors, or the mixture thereof, to be drunk in the house where sold or on adjacent premises, shall be fined in the sum of sixty dollars.

Section 6 of same article denounces a penalty of twenty dollars against any one who, without lawful authority, shall sell vinous or spirituous liquors in any quantity to be drunk ■'at the place of sale, or on premises adjacent thereto, and "which shall be so drunk.

Section 5 of article 3 of chapter 92 of General Statutes provides a penalty of sixty dollars to be paid by any tavern-.keeper or merchant who shall sell spirituous liquors without Raving obtained license therefor.

Section 1 of article 2, chapter 106, of General Statutes, reads: “A merchant may sell at his storeffiouse, to be taken off and drunk elsewhere than on his premises or adjacent thereto, any wine, spirituous liquors, or the mixture thereof, in any quantity not less than a quart. But before "he shall so sell he shall obtain from the county court a license 'therefor.”

Section 3 of -article 2 of chapter 106, General Statutes, •as amended, authorizes a distiller to sell spirits of his own manufacture at his residence in quantities not less than a •■quart.

It will be seen from these provisions of the statute that before one is required to obtain 1'icense to sell whisky he •must be engaged in merchandising and the sale of other things than whisky or spirituous liquors, and as the right to sell spirituous liquors or any other article of consumption ■exists in every case where no't forbidden by statute, it follows that such a sale as is here complained of, when the whisky sold is not drunk upon the premises or adjacent '•thereto, is not in violation of .law.

Judgment affirmed.  