The respondent was indicted for unlawfully keeping for sale fermented cider in a license town, without being a licensed dealer. Upon being found guilty, he was sentenced to six months in jail and to pay a fine of $200 and costs of prosecution, under section 33, chapter 95, Laws 1903. An exception was taken to the sentence, upon the ground that the only penalty that could be imposed was prescribed by chapter 112 of the Public Statutes and the amendments thereto.
Chapter 95, Laws 1903, does not prohibit the sale or keeping for sale of fermented cider by non-licensees (State v. Langdon, ante, 50, 52); but under the provisions of chapter 112 of the Public Statutes and the amendments thereto (Laws 1903, c. 122, s. 2), the sale or keeping for sale of cider "in less quantities than one barrel, except when sold and delivered by the manufacturer at the press or in an unfermented state," is prohibited, and the penalty there prescribed for violations of the law applies to the sale or keeping for sale of cider by non-licensees in license as well as in no-license towns. State v. Langdon, supra; State v. Kennard, ante, 76. The penalty provided in section 33 is not applicable, but is limited to sales by licensees in license towns, contrary to the provisions of chapter 95. State v. Corron, 73 N.H. 434, 447, and cases above cited.
The question presented in State v. Wenzel, 72 N.H. 396, related to the competency of certain evidence, and the discussion proceeded upon the theory advanced by the state's counsel, that the penalty provided by section 33 was applicable; but that question was not there considered.
Exception sustained.
All concurred. *Page 303