
    Our vs. The Commonwealth.
    
      October, 24.
    An indictment charging the def't with “keeping a tippling house in the town of P. by then and there retailing, &c.” charges only a retailing in that town; not that it was in a house kept by him for that purpose.
    To constitute the statutory offence of keeping a tippling house, there must be a retailing of liquor, without license, in a house kept by the retailer for that purpose: an indictment that charges only that the def’t kept a tippling house by retailing in a certain town, will not justify the fine of $60.
    Indictment.
    From the Circuit Court for McCrackin County.
    [Mr. Owsley for plaintiff: Atto. Gen. Cates for the Commonwealth.]
   The Chief Justice

delivered the opinion of the Court.

The only charge in the indictment in this case, is that of keeping “a tippling house in the town of Paducah, “by then and there selling ardent spirits by the retail, “towit, Whiskey, Brandy and Gin, without first obtaining a license therefor, according to law.”

The legal import of this charge is that Henry Our retailed ardent spirits without license, in the town of Paducah; and therefore had been guilty of keeping a tippling house. But the keeping of a tippling house is not either a necessary or legal deduction from the fact of retailing ardent spirits in the town, without license; because, consistently with the fact as charged, the retailing might have been in a booth, or even in the open street, and not in a house kept by Our for that purpose.

Wherefore, as he was not guilty of keeping a tippling house, unless he retailed ardent spirits, contrary to law, in house kept for that purpose, the indictment is, in our judgment, insufficient to sustain the fine of sixty dollars, as adjudged against him, in this case, for keeping a tippling house.

Wherefore, the judgment is reversed, and the cause remanded.  