From the evidence offered on the trial of this case, it appeared that the liquors sold by the defendants were brandy and gin, mixed with sugar and water, so as to make what is commonly called toddy or sling ; and the first objection taken is that of variance, and it is contended that the indictment should have alleged a sale of mixed liquor, part of which was spiritous. It doubtless would have been a good and legal form of charging the offence,/ to have described the article sold as brandy sling, the same being a mixed liquor, part of which was spiritous; but the point of inquiry is, whether it is not also well described as a sale of spiritous liquor, omitting the further allegation that it was a mixed liquor.
Spiritous liquor was one of the constituent parts of the article sold, and it was therefore properly described as such, unless brandy ceases to be a spiritous liquor when mixed with water and sugar. To test the case, take the first of these mixtures, the addition of water to brandy. Would this change the article, so that it would be a variance to describe it, in the indictment, as a sale of spiritous liquor ? If the mere addition of water essentially changes the character of the article, there can be no indictment, or certainly very rarely any, for selling spiritous liquors ; as the usual course of trade is to reduce them by water, before offering them for sale. It seems to us that the addition of water does not change the article, so as to render it other than spiritous liquor. The addition of sugar is more indicative of a change; *16but then how much must be added, and what proportion must the sugar bear to the spiritous liquor, in order to change the appropriate legal name of the article ? If the mixture of any small portion of sugar will render it necessary to describe the article as mixed liquor, then proof that any minute quantity of sugar was put into a large quantity of spiritous liquor would, in all cases, be sufficient to defeat an indictment charging a sale of spiritous liquor. Such a construction of the statute would cause great practical inconvenience, and greatly increase the difficulty of enforcing it.
But it is urged that the statute having distinctly enumerated mixed liquor, part of which is spiritous, as one of the different articles of which the sale is prohibited, all articles appropriately included under that description must be described by the use of the statute language, “ mixed liquor, part of which is spiritous.” But an argument nearly analogous would apply to the cases of sales of rum and brandy, when such sales are offered in evidence to sustain an indictment charging a sale of spiritous liquors ; as rum and brandy are articles named in the statute, and of which the sale is, in direct terms, prohibited. But it has been held a good description, within the statute, to describe such sales of rum and brandy as sales of spiritous liquor. If the article sold was spiritous liquor, though modified, to make it more palatable, yet we think it may. well be described as spiritous liquor.
As to the suggestion that the jury are to judge, from the testimony, whether it was mixed liquor or not, if it be meant that they are to decide the law in criminal cases, the point is more properly raised under the next head of the exceptions. As to the character of the liquor sold, there was no question of fact. It was spiritous liquor mixed with water and sugar, and the only question was, whether such an article was properly described in the indictment. The facts being uncontroverted, that was a question of law.
The further objection taken, that in criminal cases the jury are the judges of the law as well as of the facts, has received the most full consideration of the court, in a case previously *17argued. Commonwealth v. Porter, (post. 263.) It will be seen that, while the court sustained the exceptions in that case, they did so for no cause existing in this case, in which the ruling of the presiding judge was not, in any respect, in conflict with the opinion given in Porter's case. While we felt it our duty to secure to the defendant, in a criminal trial, the fullest opportunity to spread before the jury, as well as the court, every ground of defence, we were no less clear in the opinion that it was the province of the court to decide upon all questions of law that might arise during the trial. As it seems to us, the instructions upon this point were correct.
Exceptions overruled.