The gist of the offense of which the plaintiff in error was convicted, consisted not of the act of selling, but of the purpose for which the sale was made. He had a license which authorized him to make the sale, but he was prohibited from making any sale of spirituous liquors to be drank on his premises. There is no averment in the indictment that the plaintiff in error violated that prohibition. It is contended on the part of the people, that the averment of sales without having a license therefor, is sufficient to uphold a- conviction for such violation. We cannot assent to that proposition. The selling without a license to sell is a distinct offense from that which a person licensed to sell commits when he sells to be drank on the premises. It is quite as necessaiy to aver the illegal purpose of the sale in the latter ease, as the want of a license in the former. To make out the offense intended by the pleader, it must be proved that the accused not only sold the liquor, but that he sold it to be drank on the premises. Whatever is essential to be proved must be'averred. It follows that the plaintiff has been indicted for one offense and convicted of another. We think such a conviction ought not to be sustained. The rule of law upon this subject is elementary, apd requires that the defendant be specially brought within all the material words of the statute, and nothing can be taken by intendment. (Whart. Cr. L., 364-380; Wood v. People, 53 N. Y., 511.)
The conviction must be reversed, and, if the plaintiff in error is *25in prison, tbe statute (2 R. S., 741, § 26) requires that he be absolutely discharged.
Present — Mullin, P. J., SMith and GilbeRt, JJ.Conviction reversed, and prisoner discharged.