| Ind. | May 25, 1839

Dewey, J.

This was an indictment for retailing port wine by small measure without license. The defendant moved the Court to quash the indictment. The motion was sustained ; and the state excepted.

The prosecution is founded upon that part of the act relative to crime and punishment, which forbids the sale “of spirituous liquor by a less quantity than a quart at a time ” without license. R. C. 1831, p. 192. That is a penal statute and must receive a strict construction. We are not at liberty to extend its meaning beyond its exact literal sense. Spirit is the name of an inflammable liquor produced by distillation. Wine is the fermented juice of the grape, or a preparation of other vegetables by fermentation. We cannot so far confound the signification of these general terms as to call wine a spirituous liquor. We think port wine is not within the purview of the statute. If its omission is an evil, the Courts have no power to remedy it.

Per Curiam.

The judgment is affirmed.