delivered the opinion of the court.
This is a writ of error to a judgment of the county court of Hanover, to which a writ of error was denied by the judge of the circuit court of said county. On the 16th day of July, 1879, the grand jury of said county in said county court, upon their oaths presented an indictment against Thomas Glass, agent for John ”W\
On the 21st day of August, 1879, the said defendant pleaded “not guilty,” to the said indictment against him, an.d for his trial put himself upon the country, and the attorney for the Commonwealth did the like; whereupon came a jury, which were sworn, the truth of and upon the premises to speak, and having heard the evidence and arguments of counsel, were sent out of court to consider of their verdict, and returned the following verdict, torwit: “We, the jury, find the defendant, Thomas Glass, agent, guilty of the offence charged in the indictment against him, in manner and form as therein charged.” Thereupon the accused moved the court to set aside the said verdict, and grant him a new trial, which motion the court overruled.
On the 22d day of August, 1879, the court having maturely considered the said motion in arrest of judgment and heard the argument of counsel on the said motion, overruled the same; whereupon it was considered by the court that the said defendant, for his said offence, he fined fifty dollars, to the use of the Commonwealth, and that he pay the costs of the said prosecution.
To which opinion and judgments of the court, as well as other opinions rendered upon said trial, the defendant excepted, and tendered his several hills of exceptions, which were signed, sealed and enrolled and made a part of the record in the case.
The said bills of exception are three in number, and are to the following effect:
No. 1. On the trial of the case, the attorney for the Commonwealth moved the court to give the following instruction to the jury: “The jury are instructed that if they believe from the evidence, that the defendant did sell and deliver the one drink of ardent spirits, as charged in the indictment, and .failed to register the same, provided for by section 5 of the law known and called the Moffett liquor law, in the presence of the purchaser, they must find the defendant guilty; although they may further believe from the evidence, that after the purchaser had left the store he did then turn the register once for the drink so sold and delivered out of his presence. The defendant, by -, on the indictment, the agent, servant or bar-keeper for John W. Pate, a licensed bar-room keeper and barroom liquor dealer.” But the accused, by counsel, objected to the instruction, and the court overruled
Ho. 2. On the said trial, after the jury had brought in their verdict and before judgment had been entered thereon, the accused moved to set aside said verdict as contrary to the law and to the evidence. But the court overruled said motion, and the court certified that the facts proved are as follows: “That on oí1 about the 10th day of July, 1879, Thos. Glass, agent, servant, employee of John W". Pate, and at the store known as Johnson’s store, in the lower part of Hanover county, did sell and deliver to Ben Bowles one drink of ardent spirts, and did not immediately, in the presence of the said Ben Bowles, turn the crank of the proper register until the bell (of the Moffett register) had struck once and the indicator on the dial had marked one point, as required by law. But that said Thomas Glass did, after the said Ben Bowles had left the store, turn the crank of the proper register, until the bell (of said Moffett register) had struck once and the indicator on the dial had moved one point for the drink so sold as aforesaid, and that there was no one present at the time. And that at the time of said sale and delivery the said Thomas Glass, agent, did sell and deliver drinks to sundry other purchasers, and did sell and deliver sundry groceries to persons then present; and that the said Glass, agent, &c., gave on oath as his excuse for not turning the crank in the presence of Ben Bowles, as aforesaid, that he forgot it in the pressure of confusion, and did turn the crank as aforesaid, as soon as he remembered his failure, and that no one was present at the time that he did turn one crank, &c., as aforesaid; and that John W. Pate had at the time a bar-room license to sell ardent spirits, &c., at said store.”
There are various assignments of error in this case; hut one of them is conclusive of the case, and is therefore the only one which it will be necessary to notice. That one is, that the indictment contains no averment, and does not show that any offence was committed by the accused. It contains no charge that he sold by retail, ardent spirits, to be drunk at the place where sold, without having a license therefor; nor that, being a licensed retail or bar-room liquor dealer, he failed to comply with the requirements of the law in regard to a sale of ardent spirits by retail by such a dealer, to be drunk at the place where sold. These requirements are made only of licensed retail or barroom liquor dealers, and an accused can only be subjected to them, or to the consequence of not complying with them, by charging and proving that he failed to comply with them, though he was a licensed retail or bar-room liquor dealer.
The act of assembly on which this prosecution is founded, to-wit, chapter 59, Acts of 1878-9, pages 310-317, inclusive, requires a retail or bar-room liquor dealer to obtain a license to authorize him to carry on his said business; and in section five of the said act, requires him to perform certain duties therein mentioned; and in the tenth section of the said act, it is enacted that “ any licensed retail or bar-room liquor dealer, as well as his agent, servant, or bar-keeper, for every failure to perform any of the duties required of such dealer under the provisions of the fifth section of this act, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be fined not less than fifty nor more than one hundred dollars, one-third to go to the informer, for which fine such dealer and his sure
Ho doubt the offence intended to be charged against the accused in this ease was the misdemeanor defined by the tenth section of the said act. But by the express terms of the act, such offence could only be committed by a “licensed retail or bar-room liquor dealer,” or “his agent, servant, or bar-keeper.” To bring the ease, therefore, within the said terms, it ought to have been averred in the indictment, that the accused, when he committed the act with which he is charged, was a “licensed retail or bar-room liquor dealer.” He may have committed that act without being guilty of any legal offence. To authorize a valid conviction of an offence, it must be sufficiently charged in the indictment or information. Every material ingredient of the offence must be so charged; otherwise, there can be no legal conviction in the case, for, admitting the charge to be literally true, it does not follow that the accused was guilty of any offence.
The principles of law on which the foregoing observations depend, are so well settled that it seems to be unnecessary to cite any authorities to sustain them.
The following references will, however, be here made, viz: 3 Wharton on Criminal Law, chapter X, “Motion in Arrest of Judgment”; Davis’ Criminal Law, 469-70; 3 Rob. Prac. (old ed.) 275-8; 2 Va. Ca. 122, Bosher’s case; 4 Leigh 692, Pea’s case; 29 Gratt. 844, Helfrick’s case.
The judgment was as follows:
The court is opinion, for reasons stated in writing and filed with the record, that the indictment in this case contains no averment and does not show that any offence was committed by the accused; and that the county court erred in overruling the motion of the accused in arrest of judgment. Therefore, without deciding any other question arising in the case, it is considered by the court that the judgment of the said county court to which the writ of error was awarded in this case is erroneous, and that it be reversed and annulled on the ground of the error aforesaid. And this court proceeding to render such judgment as the said county court ought to have rendered, instead of that which it did render as aforesaid, it is further considered by the court, that the said judgment of the county court be arrested, and that the accused be discharged from the further prosecution, and from custody in the said case; which is ordered to be certified to the said county court.
Judgment reversed.