The offense described in the statute upon which this indictment is founded is "to retail spirituous liquors by the small measure, that is to say, in quantities less than a quart, without a license," and the question intended to be presented for our consideration upon the special verdict is whether the facts found by the jury show that the defendant did so retail. To retail, in its ordinary sense, means to sell by small quantities or in several parts, and the doubt is, whether the sale in this case was in law a sale of spirits by the quart or by the parcels of a quart, as they were delivered and agreed to be delivered. If the contract of the parties had been that the seller should deliver a quart of spirits, which particular quart should thereupon become the property of the purchaser, although the seller were by agreement to retain it for the purchaser, so as to be used from time to time as the latter might require, we suppose that such a contract (unless perhaps it were found by the jury that there was an intent thereby to evade the statute) must have been held to be a contract for a sale by the quart. But in this *Page 295 case the contract was to deliver to the purchaser, from time to (386) time, spirits in parts of a quart, as he should call for them, with an engagement on his part to take in the whole a quart in quantity, and an engagement on the part of the seller not to exact payment until that quantity should be received. Under this contract the purchaser became the owner of each cupful or half-pint of spirits as it was delivered, and the residue still remained the property of the seller. If the purchaser, after receiving one or more of his half-pints, called for the remainder, the seller's engagement would have been satisfied by delivering what was wanted to make up the quart of other spirits of the same kind and quality. To such a transaction, whereby the thing is transferred from one to the other by small quantities or in several parts for a price, the term retailing is properly applied, notwithstanding the stipulation on one side that the amount to be purchased shall be to the value of a larger quantity or of an unsevered whole, and of the stipulation on the other to allow a credit until such an amount in value should be received. And if this be the legal character of the transaction, we are the more disposed so to regard it, as any other construction of the contract would defeat, in a great number of cases, the primary object which the Legislature intended to accomplish by the statute.
But, notwithstanding our opinion upon this question, we cannot pronounce the judgment below erroneous. that judgment was rendered upon a special verdict; and a fact which is indispensable to the constitution of the offense wherewith the prisoner was charged is not found. The indictment would have been fatally defective had it omitted to aver that the defendant retailed without a license; and the verdict is insufficient to warrant a conviction in omitting to find this averment. All the circumstances constituting an offense must be found in order to enable a court to give judgment, and it is not in the power of the court to supply a defect in the finding of the jury by intendment or application.
PER CURIAM. Affirmed. (387)
Cited: S. v. Bell, 47 N.C. 338; S. v. McMinn, 83 N.C. 671; S. v.Poteet, 86 N.C. 614; S. v. Kittelle, 110 N.C. 572; S. v. Holder,133 N.C. 713; S. v. Colonial Club, 154 N.C. 182, 185. *Page 296