Information against the appellant for retailing without license. Motion to quash overruled, trial, conviction and judgment.
The information charges that the defendant, on, &e., at, &c., “ did sell for five cents to one Frederick Brockmeyer one gill of intoxicating liquors,” not being licensed, &c.
The principal objection to the information is that, it does not allege that the quantity sold was less than a quart. The statute prohibits the sale, without license, of any intoxicating liquors by a less quantity than a quart at a time; also, the sale, without license, of any such liquors (in any quantity) to be drunk on the premises. Acts 1859, p. 202. Is the information sufficient? It neither alleges that the quantity sold was less than a quart, nor that it was to be drunk on the interdicted premises. It simply charges the sale of one gill. It is undoubtedly true that Courts and juries may legally take notice of known and established measures of quantity; they may notice that a gill is a quantity less than a quart. But does the allegation bring the defendant within the prohibition? We think not. The gill sold may have been but part of a larger quantity, a quart or more. Suppose the defendant sold a quart, which he had a right to do without license, it would be true that he sold a gill, it would be true that he did just what the information charges him with doing. In the case of Commonwealth v. Odlin, 23 Pick. 275, the indictment charges the defendant with selling “ one pint of spirituous liquors,” under a statute that prohibited the sale of less than fifteen gallons. The indictment was held bad. The following remarks of the Court in that case are equally applicable here í “ It seems to be a settled rule of law that where an
We are aware that in Willard v. The State, 4 Ind. 407, an indictment which charged that the defendant “unlawfully bartered and sold one pint of spirituous liquors,” &c., was held sufficient. But we think it more in accordance with the well established principles of criminal pleading to hold that some further allegation is necessary to show that the quantity sold was less than the quantity named in the statute.
The information, in our opinion, was defective and should have been quashed.
Per Curiam. — The judgment below is reversed.