Defendant, at the request of one Black-wood, whom he knew to be a person of intemperate habits, *359received from him one dollar, and under bis promise that defendant might have any surplus of the money, bought of a dealer in liquors one bottle of whiskey, and carried and delivered it to Blackwood. Being indicted and convicted for this, under section 4205 of the Code of 1876, defendant here insists that the circuit judge erred in charging the jury that upon evidence of these facts, and of the venue, they should find the defendant guilty.
The statute declares, that “ any person, whether with or without a license, who shall sell or give away spirituous, vinous or malt liquors, in any quantity whatever, to minors, or persons of known intemperate habits, except,” &c., shall be fined, &c.
The rule is, that penal laws are not by construction to be made to embrace cases not plainly within their meaning. “In nothing,” (said Tilg-HMAN, O. Í.) “is the common law which we have inherited from our ancestors, more conspicuous, than in its mild and merciful intendment towards those who are objects of punishment.” — Com. v. Duane, 1 Binney, 601. One who commits an act which does not come within the words of a penal statute, according to the general and popular understanding of them, when they are not used technically, is not to be punished thereby, merely because the act contravenes the policy of the statute.
The purpose of the enactment under consideration is obvious ; and the construction put upon it by the circuit judge, tends to carry out that purpose. But it does so, we think, by extending the statute to a case not within its terms, as they are generally understood, and not within the mind of the legislature that enacted it. It might be argued, certainly, that one who takes the money of another, and buys a bottle of whiskey with a part of it, (though it is not shown whether this defendant paid a part of the money only or all of it for the bottle of whiskey), and then delivers it to the person from whom the money was received, in effect, sold the whiskey to him. But this is putting upon the word sold, a strained interpretation.
The instance proved was not within the contemplation of the law makers, and not provided for by them. No liquor was given away by any body. The real seller, was the dealer in liquors of whom the whiskey was bought. And the defendant, in getting it, was but the agent of Blackwood, the purchaser. And if he were known, as such, to the real seller, the latter would be the person who ought to be indicted.
Let the judgment be reversed and the cause remanded.