
    Case 9 — INDICTMENT
    Sept. 11.
    Herine v. Commonwealth.
    APPEAL PROM JESSAMINE CIRCUIT COURT.
    1. An indictment against a distiller por selling ardent spirits at his residence, in quantities of a quart and less, without a license, is held to be insufficient as an indictment for keeping a tippling-house, in that, in attempting to state the acts constituting the offense, it did not allege that the defendant sold the ardent spirits in a house, to be drunk therein, or on or adjacent to the premises where sold, or that the liquor was sold and drunk in a house, or on or adjacent to the premises where sold; and also, insufficient as an indictment against a tavern-keeper or merchant, in that, it recited that the defendant sold the liquor “while engaged in the distillation and merchandising of spirituous liquors,” and did not charge that he was a tavern-keeper or merchant when he sold the liquor named therein.
    
      ■ The indictment in this case is as follows — to wit:
    “The Grand Jury of Jessamine County, in the name and by the authority of the Commonwealth of Kentucky, accuse O. C. Herine of the offense of selling spirituous liquors, without license, committed as follows, to wit: The said C. C. Herine, on the 20th of August, 1875, in the county aforesaid, while engaged in the distillation and merchandising of spirituous liquors, did sell such liquors— to wit, whisky and brandy — in quantities of a quart and less, to one W. B. Gibney, at a point other than his distillery, namely, at his-residence, against the peace and dignity of the Commonwealth of Kentucky.”
    H. A. ANDERSON for appellant.
    
      First. It is no offense for an ordinary citizen to sell a quart of whisky to another, except when sold to be drunk on the premises or adjacent thereto, or which, when sold, is so drunk. (General Statutes, art. 35, ch. 29.) There is but one inhibition, and that applies to tavern-keepers- and merchants. (Sec. 5, art. 3, ch. 92.)
    The statute (secs. 1, 2, art. 2, ch. 106, Gen. Stat.) applies to merchanis in good faith, and does not apply to a case like this.
    
      Second. The indictment is not “ direct and certain.” (C. C., sec. 124.)
    
      Third. The indictment is not good under sec. 6, art. 35, ch. 29.
    
      Fourth. The indictment is defective in not stating the offense was committed before it was found. It does not give the name of the offense.
    The “offense of selling spirituous liquors without license” is the proper name of the offense set forth in sec. 6, art. 35, ch. 29, but not of the offense set forth in sec. 5, art. 3, ch. 92, or sec. 1, art. 2, ch. 106.
    THOS. E. MOSS, ATTORNEY-GENERAL, FOR APPELLEE.
   JUDGE ELLIOTT

delivered the opinion of the court.

The appellant C. C. Herine was indicted in the Jessamine Circuit Court for selling ardent spirits without a license so to do. Thé indictment charges that Herine, “on the 20th of August, 1875, while engaged in the distillation and merchandising of spirituous liquors, did sell such liquors — to wit, whisky and brandy — in quantities of a quart and less, to one W. B. Gibney, at a point other than his distillery, namely, at his residence;” but the indictment fails to charge that appellant sold the ardent spirits in “ a house, to be drunk therein or on or adjacent to the premises where sold,” or that the liquor was sold and drunk in a house, or on or adjacent to the premises where sold, and therefore it was insufficient to authorize a verdict and judgment for keeping a tippling-house. (See General Statutes, page 364.)

By chapter 92, article 3, section 5 of the General Statutes it is provided that “any tavern-keeper or merchant who shall sell spirituous liquors without having obtained a license therefor shall, on conviction, pay $60but the indictment in this case fails to charge that the appellant was a tavern-keeper or merchant when he sold the liquors named therein, and therefore he could not have been convicted under this provision of the statute.

As appellant was fined $60 upon an insufficient indictment, the judgment is reversed and cause remanded, with directions to dismiss the prosecution.  