The indictment charges the sale of “a quantity •less than five gallons of cider” on the first day of August 1886, without stating that it was sold “to be used as a beverage or for .tippling purposes,” The omission is fatal to the indictment; for *391all that the indictment charges may be true, and the defendant have violated no law.
The indictment is found under c. 27 of R. S.; and that chapter permits the sale of unadulterated cider, not sold “to be used as a beverage or for tippling purposes.” These uses to be made of the article must exist, in order that the statute may apply to the sale of cider at all. The sale must be tainted and coupled with the particular use or purpose to come within the statute. State v. McNamara, 69 Maine, 133; State v. Roach, 75 Maine, 123.
This case does not come within the rule that an exception or proviso not in the enacting clause of a statute need not be negatived ; for this statute, by its express language, does not apply to the subject at all, unless certain conditions exist. These conditions are not exceptions withdrawn from the scope of the statute, but are made the subject matter upon which the statute may act. Unless they exist, the statute is inoperative; and unless they be averred, no violation of the statute is shown.
Exceptions sustained.
Peters, C. J., Walton, Daneorth, Virgin and Emery, J J., concurred.