Opinion of the Court delivered by
Napton Judge.The appellant was indicted in St. Genevive county, for selling spiritous liquors to a slave without the permit in writing from his master; under the 7th section of the act concerning grocers. The indictment after laying the venue, charged that defendant “exercising the trade and business of a grocer, did then and there, sell spiritous liquors to divers slaves, to the jurors aforesaid unknown, without a permit in writing from the owner or possessor of such slaves, for that purposes first had and obtained according to law to the evil example &c.”
The second count charged that defendant had been, and was regularly licensed to exercise the trade and business of a grocer, and then and there bring licensed to trade, and exercise the business of a grocer; as aforesaid did then and there sell spiritous liquors to a slave, the property of and *196belonging to one widow Larose, at the county aforesaid' without any permit in writing fromthc said wid ow Larose„ the own er and possessor of the said slave, first had and obtained, to warrant and authorise the said Frasier to sell spir-ltous liquors to the said slave.
Indictment under the 7ill s.eo of the act grocora?(E?C. ISSS; p-~J2.) First count chebos that dof. “exoroi. ting the trade and business of a grocer, did then and there, soli spiritous li-liquors to div o rs slav s ¿j-c. second count, that doit, had been and vas regularly li-erciso the business of a grocer &c. dcrtlhs'indict mci.t, it was fhe state?to” def'was'a grooor, or cer aatatho°' titac of sol-Iffenco oVsel-"ifve^vitiiout ^ unlicensed who a different off-permit from jpa master by onoe from the one charged in the indictment, andiho punishment differout*196There was a verdict against the defendant and judgment for fifteen dollars. It was proved on the trial that defendant sold to a slave, the property of Mrs. Larose, some whiskey, for which' he received pay from said slave, and there was no other evidence.
A motion was made for a new trial because the verdict was against the evidence, which was overruled, and a motion in arrest, which was also overruled.
Both counts in this indictment charge the defendant as a grocer, and one count charges him as a licensed grocer? there was no proof that he acted as a licensed grocer at all; tiie oflence of selling liquor to a slave, without r, vermitfrom . .. . , , his master, by an unlicensed grocer, orapersov who does not ]íeep a n,rocer ¡s a difierent offencp from the one char-1 o r ged in this indictment, and the punishment is dmerent. the verdict of the jury for fifteen dollars, and the judgment in pursuance thereof, prove plainly that the oflence charged and punished, was for selling as a grocer; there is clearly a variance between the proof and the indictment, one of the essential engredients of the offence was not proved.
The act in force at the time of finding this indictment, de-c]ared what constituted a grocer, one who deals in the selling of wines &c., and one who “deals in the selling of S°°ds &C”
No inference could be drawn, from a single act of selling a single pint of whiskey, that the vender was a grocer. If oflence was equally prohibited in grocers and all others, the averment in the indictment, that defendant was a grocer> perhaps be regarded as surplusage, and the ver-be well sustained. But this is not 1lie case, there is one penalty imposed on grocers, who are licensed, and another, and higher punishment, inflicted on unlicensed grocers, and persons not exercising the trade or business of a Supposing the description in the first count, that *197defendant was a grocer, to be rejected as surplus age, the verdict of the jury for fifteen dollars’ could not be applicable to that count, because the minimum penalty inflicted by the statute, on such venders of liquors, is twenty dollars.
Cole for Appellant: , , . ,. ,, ... 1. I lie circuit court erred, m overruling the motion m arrest of judgment, for the following reaspns. The merit counts upon two distinct offences, with different pun ishnients, the judgment and finding of the jury arc general, this is a misjoinder and therefore erroneous. 2. The circuit court erred in overruling the motion for a new trial, because the evidence does not maintain the indictment. In order to convict on either count of this indictment it was necessary for the state to prove the material facts, the constituents of the offence as alleged; this has not been done; there was no proof that defendant was a licensed grocer, this was a material fact, and wholly omitted on the part of the state. Brickey for the State. 1. Is there a misjoinder of counts in the indictment'? 2. Was the state bound to prove that the defendant was a regular licensed grocer, having charged him so in the indictment?The second count was not sustained by the evidence, for there was no proof that he liad a licensi a matter of defence, more proper to be set up by and which he might easily establish in mitigation of the fence; but it was easy to prove that he “dealt in the soiling” of liquor &c., and this was not done. The judgment of the circuit court is reversed. . , i because that was