Opinion of the Court, delivered by
Napton, Judge-.The grand jury of Linn county indicted the defendant,. Auberry, for transgressing the law concerning groceries and dram shops. The indictment charged, “That defendant on,, «fee., at, &g., did exercise and carry on the business of a-grocer without a license-for that purpose continuing in force, and that without such license, that the said Auberry did sell-spirituous liquors, in- quantities not less than one quart,, to wit, one gallon, &c., to-divers persons, &c., against the form of the-statute, &c.”
On the defendant’s motion, this indictment was quashed;. The attorney for the State excepted to the opinion of the court on this point, and sa-ved his exceptions by bill.
The only objection suggested to the indictment is, that the pleader should- have averred- that the liquor sold “was not to be- drank at the place of sale.” The first section of the act to regulate groceries and dramshops, (Acts of 1840 — 1, P- 81) provides that any person desirous of selling wine or &spir>tuous liquors in a quantity not less than one quart, and not be drank at the place of sale,.shall take out a license to iíeeP a guocieryr, and any person desirous of selling wine or spirituous liquor» in a less quantity than one quart, orto be dran k at the place of sale, shall take out adicense to keep ^ dram shop.” It will be seen-from-this section, that the-r . keeper of a grocery is authorised to sell liquors m quanti-ties exceeding a quart, provided they are not to bedmankat the place of sale, and a dram- shop keeper may sell in quan- ... > ¶ , ... titles under a quart, no matter where drank,.-or may sell m *305any quantity, provided the liquors are drank at his dram shop.
This indictment charges that the defendant sold liquors in quantities not less than a quart, but does not state whether the liquor was drank at the place of sale or not. If the liquor was drank at the place of sale, though the quantity exceeded a quart, the defendant would have been guilty of . . A o * selling liquors without a dram shop license. But as the indictment charges that defendant sold without a grocery license, it should have negatived the fact, that the liquors were to be drank at the place of sale. In other words, the indictment should have pursued the words of the statute, . , . , r . . . , i he judgment or the court was, m my opinion, correct, and should be affirmed.