
    State vs. William Sommers, 2d.
    
      Caledonia,
    
    
      March, 1830.
    judiotiiioiit for selling liquors Without a license ought to allege that the respondent was not authorized to sell liquors in any mode designated by the statute, particularly negating each source from which he might have obtained a license.
    This was an indictment for selling liquors without a license, on Which the respondent was found guilty by the jury j and he after-wards filed a motion in arrest for the insufficiency of the indictment, which was as follows i
    
    “ The grand jurors within and for the body of the county of Caledonia aforesaid, now here in court, duly efflpanneled and sworn, on their oaths present, — That William Sommers, 2d. of Barnet, in said county, of Caledonia, on the second day of September, A. D. 1828, at Barnet, aforesaid, did then and there, With force and arms, sell by small measure, West-India rum,brandy, gin and wine, by a less quantity than one pint, to wit; one half pint of rum, one gill of rum, one glass of rum, one half pint of brandy,One gill of brandy,one glassof brandy,one half pint of gin,one gill of gin, one glass of gin, one half pint of wine, one gill of wine, one glassof wine, to sundry persons hereto said jurors unknown, the said William Sommers, 2d. at the same lime of selling said West-Tndia rum, brandy, gin and wine, as aforesaid, not having a license from the county court, within and for said county of Cale-tionia, nor from any judge of the same, nor from the civil authority and select men of said Barnet, to keep an inn or house of public entertainment, in said Barnet, against the statute in that case made and provided,and against the peace and dignity of the state.”
    The case having been brought before the Supreme Court,
    
      Mr. Burbank, for the defendant, assigned several causes of arrest, and among others, That it did not appear from the indictment that Sommers, on the day of the supposed selling of said liquors, was not authorized by the select men and civil authority of the town of Barnet, to sell spiritous liquors on special occasions for three days, or a less time, according to the 8th section of the act of 1798.
    
      Mr. Davis, for the state, contra, contended that it was not necessary to negative all sources from which th'e defendant might have been authorized to sellliquors, and cited 1 Chit. Crim. Law, 232 ; 2 Burr. Rep. 1036. — That the words, “ to keep an inn,” 8zc. might be regarded as surplusage, and then there was a general negative, which was sufficient. — Id. 174.
   The opinion of the Court Was delivered by

Paddock, J.

This indictment appears to have been framed upon the 4th section ol an act passed in 1804, in addition to an act directing the mode of obtaining licenses, and regulating inns and houses of public entertainment,passed in 1798. The first, second, and third sections of the act named, direct and point out the mode in which a person may obtain license for keeping an inn, or house of public entertainment, to wit, from the county court. The 8th section of the same act “ authorizes the civil authority and select men of any town to license any person or persons to mix and sell any of the liquors aforesaid, in any quantities, on days of general muster, and other public and proper occasions, for the space of three days,” without naming or confining the sale to any house or place. — -The second section of the act of 1804, authorizes any judge of the county court to license any person within the county to keep a house of public entertainment, until the next session of the county court.” The indictment, after charging defendant¡with selling spiritous liquors in less quantity than one quart, alleges that, “ the said William Sommers, 2d, at the time of selling said rum, brandy, gin and wine, as aforesaid, not having a license from the county court within and for said county of Caledonia, nor from any judge of the same, nor from the select men and civil authority of said Barnet, to keep an inn or house of public entertainment in said Barnet, against the statute in such case made and provided,’* &c.

Ch. Davis, for the state.

P. Burbank, for defendant.

It is evident that the negation, in this case, is too narrow to cover the 8th section in the first act, when restricted or limited by the words “ to keep an inn or house of public entertainment.” Had those words been omitted in the indictment, the sale of the spiritous liquors complained of would have been without license from any legitimate source ; but taken as a part of the negation, it follows,that the defendant might have had a license and lawful authority to sell spirits at the time and place he did, but not, to keep an inn or house of public entertainment. For these reasons, the judgement must be arrested.

Judgement arrested.  