Opinion by
Judge Lewis:The defendant was indicted or- intended to be indicted for a violation of the Gen. Stats. 1881, Ch. 92, Art. 3, § 5, by which it *594is provided that any tavernkeeper or merchant who shall sell spirituous liquors without having obtained a license therefor, shall on conviction be fined $60.
7. W. Caperton, for appellant. P. W. Hardin, for appellee.There is no evidence in this case showing, or tending to sho w, that the defendant was a merchant, in the meaning of the statute, at the time the liquor is proved to have been sold by him.
A merchant is defined in Gen. Stat. (1881), Ch. 106, Art. 2, § 2, to be a person whose business is that of retailing merchandise, and before the county court is authorized to grant license to a merchant to sell liquors, it must be satisfied that “he has not assumed the name and business of a merchant with the view and object of obtaining a license to sell spirituous liquors.” This shows conclusively that the legislature did not intend that a person engaged in selling liquors alone should be deemed a merchant entitled to license, subject to the penalty imposed upon a merchant for selling without having obtained a license therefor.
The instructions of the court being in conflict with this opinion the judgment is reversed and cause remanded with instructions to grant to defendant a new trial and for further proceedings consistent herewith.