
    The State v. Stuart Perry.
    Every indictment must contain a direct positive allegation of the act which constitutes the offence charged: An indictment, charging that the defendant “ did take upon himself to retail spirituous liquors” without a license, held bad, upon motion in arrest of judgment.
    Tried before Mr. Justice Johnson, at Kershaw, Fall Term, 1830, ■
    The defendant was indicted under the act of 1801, for retailing- spirituous liquors without a license. The act provides, that any person or persons who shall retail spirituous liquors, without a license from the commissioners of roads, shall forfeit and pay the sum of one hundred dollars, to be recovered in any district Court in this State. 2 Faust, 400. The indictment charged, that the defendant “ did take upon himself to retail spirituous liquors, to W. S. and divers other persons, he the said Stuart Perry then and there having no license,” &c. Upon this indictment the defendant was convicted, and now moved in arrest of judgment.
    Levy, for the motion.
    Mayrant, solicitor, contra.
    
   Johnson J.

The necessity of a positive and affirmative averment that the accused did the act charged, is obvious — without it, the opposite intendment grows out of the presumption in favour of innocence, nor can the Court know of what offence the accused has been convicted, or the degree of guilt he has incurred. State v. Haider. 2 M’C. 377. In framing this indictment this rule has been clearly violated. There is no affirmative allegation that the defendant did the act charged, nor is it supplied by the averment that he did take upon himself to do it. One may take upon himself to do an act in futuro, or one which he may be actually unable to perform. If the opposite intendment be adopted, the defendant has not yet done the act, and may have been unable to do it. The motion is therefore granted, and it is ordered that the judgment be arrested.

.O’Neall J. and Evans J. sitting for Harper J. absent from indisposition, concurred.

Judgment arrested.  