The appellant was indicted for violating the-“get to regulate the sale of intoxicating liquors,” etc., approved. February 27th, 1873. Acts 1873, p. 151.
Section 1 enacts, “ that it shall be unlawful for any person or persons, by himself or agent, to sell, barter, or give away for any purpose of gain, to any person whomsoever, any intoxicating liquors to be drunk in, upon, or about the building or premises where the liquor is sold, bartered, or given away, orín any room, building, or premises adjoining to or connected with the place where the liquor is sold, bartered, or given away for the purpose of gain, until such person or persons shall have obtained a permit therefor from the board of commissioners of the county where he resides, as hereinafter provided.”
*539Section 10 enacts, that “apermit granted under this act shall not authorize the person so receiving it to sell intoxicating liquors on Sunday, nor upon the day of any state, county, township, or municipal election in the township,'town, or city where the same may be held, nor upon Christmas day, nor upon the 4th of July, nor any Thanksgiving day, nor upon any public holiday, nor between 9 o’clock p. m. and 6 o’clock A. M.; and any and all sales made on any such day, or after 9 o’clock on any evening, are hereby declared to be unlawful, and upon conviction thereof the person so selling shall be fined not less than five dollars nor more than twenty-five dollars for each sale-made in violation of this section.”
Section 14 enacts the penalty incurred under section 1, which is “ a fine of not less than ten dollars nor more than fifty dollars, or be imprisoned in the jail of the county not less than ten nor more than thirty days.”
There is no other portion of the act which'partieularly affects-the question before us.
Besides the formal parts of the indictment, the material charge in it is, that Jacob Crone on, etc.; at, etc., did unlawfully sell to Allen Short, for the purpose of gain, two gills of intoxicating liquor, at and for the price of ten cents, and did then and there suffer and permit the said liquor to be drunk in the building and upon the premises where the same was ' sold, the said liquor being then and there sold as aforesaid by him, the said Jacob Crone, after the hour of nine o’clock in the evening, and after the hour of nine o’clock P. M. of said day, contrary, etc.
There was a motion to quash the indictment overruled, plea of not guilty, trial by jury, conviction, fine ten dollars, motion for a new trial overruled, exception, judgment, and appeal. '■
The errors assigned are :
1. Overruling the motion to quash the indictment.
2. Overruling the motion for a new trial.
It is urged in support of the first error, that the indictment is founded on section 10, and therefore should aver that the-appellant had a permit; that without such averment it could *540not be ascertained, upon conviction, whether tbe appellant had incurred the penalty under section 10 or that under section 1; and that the record could not be pleaded in bar of a subsequent prosecution for the same offence.
We are of opinion that the indictment does not rest solely on section 10. This section creates no offence independent of that defined in section 1. The two sections must be construed together. A permit authorizes the sales described in section 1 on all days and in every hour of the day; section 10 limits the permit, so that it shall not authorize such sales on certain days therein excepted, nor within certain hours of the day. The sales prohibited by section 10 must be construed to mean such sales as are described in section 1, otherwise no commercial sale of intoxicating liquors, or for medical, chemical, or mechanical purposes, or for the pse of the arts and sciences, could be made on the prohibited days, nor within the interdicted hours, nor after nine o’clock on any evening in any other day in the year. It is easy to see that this was not the intention of the legislature, for we cannot suppose that they ■would have prohibited, in terms, such sales on certain days in the year, and within certain hours in the night time, as mentioned in section 10, and leave such sales unprohibited on all other days and within the usual business hours throughout the remainder of the year. The act nowhere makes the mere sale of intoxicating liquors an offence. To be a subject of prosecution, the sale must be of a particular character, as a sale of the liquor to be drunk on the premises, to a minor, a person intoxicated, etc., and must be made an offence in terms by the act. A punishable offence must be clearly defined by statute; it cannot be created by construction.
It is also insisted upoD that the indictment is invalid for want of an averment that the appellant had a permit. Having a permit is no part of the offence, nor description of the offence. If such an averment was made, it would not require proof, nor would it impose more, or excuse less evidence on the trial. It would not in any way change the legal effect of the indictment. But it is said that, such an averment was *541necessary for the purpose of ascertaining what penalty would be incurred under the indictment in case of a conviction. We see no difficulty here. The penalty prescribed under section 1 is not applicable to this indictment, because it does not allege that the sale was made without a permit; and the penalty prescribed in section 10 is applicable to this indictment, because it alleges the sale to have been made within the prohibited hours, which is not a violation of any other section in the act. Besides, the penalty incurred under an indictment is matter' of law, and not of fact, which must be averred and proved. In support of these views, see Lehritter v. The State, 42 Ind. 383; Lehritter v. The State, 42 Ind. 482; Landaner v. The State, 42 Ind. 483; Hulsman v. The State, 42 Ind. 500 ; Groesch v. The State, 42 Ind. 547; Ginz v. The State, 44 Ind. 218; Beardsley v. The State, ante, p. 240.
As to the second error, we have read the evidence carefully, and are of the opinion that it would convince a fair-minded jury, beyond a reasonable doubt, that the defendant committed the offence charged against him in the indictment. In the ■case cited by the appellant, Anderson v. The State, 39 Ind. 553, 'c the evidence did not show that the person who sold the liquor was the agent of Anderson, or employed by him, or that Anderson had any knowledge of the sale.” In this case, although the sale was made by a barkeeper, the evidence tends so strongly to show that the appellant had full knowledge of the transaction, and assented thereto, that a doubt of these facts would be light and frivolous.
The judgment is affirmed.