delivered the opinion of the court.
The indictment upon which appellant was convicted charged that she “did . . . ' keep for sale ... intoxicating liquors.” There was a verdict of “guilty as charged,” and appellant was fined the sum of two hundred and fifty.dollars and sentenced to imprisonment in the county jail for a period of ninety days. The evidence disclosed that her residence had been raided on several occasions, months apart, by the police; intoxicating liquor being found there on some of these occasions and not on others.
The only instruction granted at the request of the state was as follows:
“The court instructs the jury for the state that, if you believe from the evidence beyond a reasonable doubt that the defendant, Clarissa Collins, had beer in her possession for sale at the time of the raid upon her house by policemen Lynch, Goodin, and Underwood, then it is your sworn duty to find the defendant guilty as charged.”’
Section 1746 of the Code of 1906, as amended by chapter 115 of the Acts of 1908 and by chapter 214 of the Acts of 1912, makes it unlawful to “keep for sale . ’ . .. *625intoxicating liquors,” and provides that any person so doing shall, on conviction, he punished “by a fine of not less than fifty dollars nor more than five hundred dollars, or to be imprisoned in the county jail not less than one week nor more than three months, or both, for the first conviction for an offense committed after the passage of this act,” and then for an increased punishment upon conviction for a second and third offense. Section 1797 of the Code of 1906, as amended by chapter 114 of the Laws of 1908, provides that:
“It shall be unlawful for any person in this state to have in his possession any intoxicating liquors with the intention or for the purpose of selling the same . . . in violation of law. ’ ’
And:
“Any one violating this section shall, upon conviction for each offense, be punished by a fine not less than ten dollars nor more than one hundred dollars, or be imprisoned in the county jail not exceeding thirty days or by both such fine and imprisonment.”
These two sections appear in the same Code and, when re-enacted in 1908, were both approved on the same day. It seems clear, therefore, that the legislature intended by them to create separate and distinct offenses and not to repeal one of them by enacting the other. To say that a person keeps an article for sale seems to involve the idea that he does so habitually; one of the definitions of the word “keep” being “to have habitually in stock or for sale.” Century Dictionary, vol. 5. The illustration there given of the use of this word in this sense is taken .from Hawthorne’s “House of the Seven Cables,” and is as follows:
“A . . . house wife of the neighborhood burst breathless into the shop, fiercely demanding yeast; . . . the poor gentlewoman with her cold shyness of manner, gave her hot customer to understand that she did not keep the article.”
*626It may be that the legislature had this definition of the word “keep” in mind in framing these two statutes. At all events they have attached one punishment to the keeping of intoxicating liquor for sale and another to merely having such liquor “in possession” for the purpose of sale. Under the latter section, as illustrated by counsel, if A. gives to B. a pint of whisky with the request that he sell it, and B. is arrested before effecting a sale thereof, he is guilty of having intoxicating liquor in his possession with the intention of selling it, but not of keeping it for sale.
It seems, therefore, that under these statute proof of the possession of intoxicating liquor with intent to sell it without more is not sufficient to support a conviction for keeping such liquor for sale. In the case at bar the jury might have believed that, at the time her house was raided on the occasion in question, appellant then had intoxicating liquor in her possession with the intention of selling it, but that she did not keep it for sale. The instruction complained of should therefore not have been granted, and for that reason the judgment of the court below is reversed, and the- cause remanded.
Reversed and remanded.