Commonwealth v. Allen

Judge Simpson

delivered the opinion of the court.

The indictment in this case charges the defendant with having kept a tippling house, but it does not allege that she had no license which/-authorized her to sell spirituous liquors. The court below quashed the indictment as insufficient. The necessity of an averment in such an indictment that the defendant kept a tippling house without a license is the only question for adjudication.

This question is made under the Revised Statutes. They declare that “any person, unless' he shall have a license therefor, who shall sell, in any quantity, wine or spirituous liquors, &c., shall be deemed guilty of keeping a tippling house.”

The averment that the defendant has kept a tippling house, necessarily implies that she has no license, for it is the fact of selling, to be drank in the house, or on the adjacent premises, without a license, that constitutes her the keeper of a tippling house. H she had a license which authorized her to sell, she is not guilty of keeping a tippling house. It is not necessary therefore to allege in an indictment or presentment for keeping a tippling house, that it was done without a license, for the selling must have been so done, or the charge of keeping a tippling house is not true. This question was so decided in the case of the Commonwealth vs. Harvey, (June term, 1853,) and we still think the decision is correct.

Harlan, Attorney General, for plaintiff.

Wherefore, the judgment is reversed, and cause remanded that the defendant’s motion to quash the indictment may be overruled, and for further proceedings consistent with this opinion.