Opinion.
Campbell, C. J\,delivered the opinion of the court:
The indictment charges no offense. It alleges a sale of spirituous liquors on the 7th of September, 1883, in a quantity less than one gallon, without a license, in pursuance of law.
From February 23, 1882, to March 4, 1884, there was no penal law against selling spirituous liquors without license in less quantity than one gallon. It was a penal offense to sell less than one pint, but not to sell less than a gallon, as this indictment charges. This state of the law resulted from the action of the Legislature in enacting that the word “ pint,” in sections 1097, 1098, 1103, 1108, and 1109 of the Code should be stricken out and the word “ gallon ” inserted. Acts of 1882, page 10. The word “ pint ” was not stricken out of section 1112 of the Code until March 4, 1884. That section, and that only, denounced a penalty against selling without a license in particular quantity and its penalty was for selling less than a pint.
No objection of this sort was made in the trial of this case in the Circuit Court, but since it is manifest that the indictment does not charge an offense, the judgment for a penalty not provided for by any law cannot be enforced.
We arrest the judgment and discharge the appellant.