The court charges the jury that two acts were necessary to make up the offence under trial. First. Carrying on the business of retailing liquor in less quantities than five gallons, and, second, doing this without having paid the special tax required by law of retail liquor dealers. The statute, from the severity of the punishment imposed (this was before the amendment fixing a much lighter penalty), evidently did not intend to punish the of-fence of selling an occasional drink or bottle of liquor, an offence, the suppression of which it seemed to leave to the police or the local tribunes; but it contemplated the larger offence, really prejudicial to the revenues of the government, of carrying on the business of retailing liquor without the payment of the proper tax. This latter offence is a legitimate subject for the cognizance of a United States court; the other offence, which is one merely against the good order of society, is not within the legitimate objects of the jurisdiction of the national tribunals of justice. If they took cognizance of such offences they would interfere in affairs properly belonging to the cognizance of the local courts and police.
It is for the jury to decide how many sales, and what preparation and appointments of a bar-room are necessary, in each case, to constitute the offence of carrying on the business of retailing liquor; but the court is clear in instructing them that a few instances of selling liquor in small quantity by persons having no bar-rooms, and none of the usual appliances of retail liquor dealers, with no intention apparent of defrauding the national revenue, do not constitute a carrying on the business of retail liquor dealing, within the meaning and objects of section 3242 of the Revision.
I find that in the Western district of North Carolina, the United States circuit court there has established a standing order in accordance with these views in the following words: “No warrant shall be issued by a United States commissioner against a person charged with retailing distilled spirits or tobacco, unless the affidavit of information shall expressly state that such person has violated the revenue laws by frequently selling such articles.”
The jury brought in a verdict of not guilty.