Information against Samuel Howe for retailing. Conviction and fine of 20 dollars. A motion to quash was made and overruled before the trial.
The record does not disclose, expressly, as to the statute under which the prosecution was instituted, but we conclude it was under the liquor law of 1855. If so, the information should have been quashed, because that law is unconstitutional and void. This is the unanimous opinion of the Court (1).
But suppose the prosecution to have been under the liquor law of 1853, still the information should have been quashed because it contains no negative of a license to sell. As the act of 1853 was a license law, an information founded upon it should negative that the defendant had license to sell. 3 Wat. Arch. p. 609-78. U. S. Crim. LaAv, 524, et seq. The question, therefore, whether the act of 1853 is.in force does not arise in this case.
D. Moss, for the appellant.The judgment is reversed. Cause remanded to be dismissed.
O’Daily v. The State, 9 Ind. R. 494.