delivered the opinion of the Court:
This judgment must be reversed, for the reason that the instruction given by the court on behalf of the prosecution makes the offense to consist in merely opening the saloon, when the ordinance under which the prosecution was instituted provides, if any person shall keep open any tippling house oil the Sabbath day or night, every person so offending shall, on conviction, be fined, etc. Merely opening the door of a tippling house on Sunday would not constitute the offense aimed at by this ordinance. It must be kept open, as on week days, for tippling purposes, and nothing of that kind was proved in the case.
It was erroneous, also, to modify defendant’s second instruc tion. As asked, it was as follows: Unless you are satisfied from the evidence that the room called the saloon was a place where the defendant kept spirituous liquors for sale by the small quantity, you should find the defendant not guilty.
The court modified this instruction by adding after the words, spirituous liquors, the words, “ or other drinks.” By this instruction, as modified, if soda water, sarsaparilla, or any other cooling or refreshing drink, not spirituous, were sold, the vendor could not escape conviction. He would be equally liable to punishment with the vendor of whiskey or other spirituous beverages. Such is not the law.
To constitute a tippling house, it is necessary that intoxicating drinks should be sold therein.
The judgment must be reversed and the cause remanded.
Judgment reversed.