#### Hulstead v. The Commonwealth.

July, 1835.

Ardent Spirits — Sale without License — Indictment-Designation of Purchaser as Unknown — Variance-Effect.* — At the trial of an indictment for retailing ardent spirits without license, “to persons to the jurors unknown,” defendant offers proof that the persons to whom he sold the same were known to the grand jury at the time the indictment was found: Held, this is not a material variance between the proof and the charge in the indictment; for it is not necessary in indictments for such offence to name the person to whom the liquor was sold, and so the words “to persons to the jurors unknown” are surplusage.

Case adjourned from the circuit superior court of Harrison. Hulstead was indicted in the county court of Harrison, for retailing ardent spirits without license; the indictment charging such sale to have been made “to persons to the jurors unknown.” *271Plea, not guilty. At the trial, the defendant moved the court to instruct the jury, that if it should find from the evidence, that the person or persons to whom he sold the spirits in the indictment mentioned, were in fact known to the grand jury at the time the indictment was found, the commonwealth could not sustain this indictment. The county court refused to give such instruction, and the defendant excepted. Verdict, guilty, and judgment for the penalt3r of 30 dollars imposed by law, and the costs *of the prosecution. Hulstead applied to the circuit superiour court for a writ of error to the judgment ; assigning error, that the county court refused to give the jury the instruction he asked. The writ of error was allowed. And the question arising on the assignment of error, was, by consent, adjourned to this court.

W. A. Harrison, for the plaintiff in error.

The attorney general, for the commonwealth.

*

Ardent Spirits — Sale to Minors — Indictment—Designation of Purchaser as Unknown — Variance—Effect.— In Morgenstern v. Com., 27 Gratt. 1018, on an indictment under the statute for selling liquors to minors, without the consent of their parents or guardians, the indictment was for selling to "certain minors the names of whom are to the grand jurors unknown.” It clearly appeared from the evidence that in fact the names of the minors to whom the liquor was sold were known to the grand jury. This was held to be a fatal variance. The court, distinguishing the principal case, held that the case at bar — unlike that of selling ardent spirits without license — was brought within that class of cases where the act constituting the offence is an injury to third persons, and, that in such cases, the name of the person if known must be stated, and if described as “a person to the jury unknown,” and *271it turns out upon, the proof that the name was known, the variance will be fatal. Judge Christian, who delivered the opinion of the court, in closing, said: “This case (principal case) is entirely consistent with the rules of criminal law above stated, and is not at all in conflict with the authorities above cited. The offence of selling ardent spirits without license, is not an offence against third persons; but an offence against the revenue laws, and it may be against social order and public morals. The offence is the selling without license. It matters not to whom or to what person it is sold; and therefore the name of the person is immaterial to be stated. But under the statute upon which the indictments before ns are found, the offence is not the mere selling of ardent spirits; but selling or furnishing the same to a minor without the consent of the parent or guardian. In such a case the act constituting the offence, is an injury to third persons. and therefore the person, if known, must be named in the indictment; and if charged as *a person to the jurors unknown,’ when in fact he is known, this will be a fatal variance.

“The court is therefore of opinion, that the judgment of the said hustings court in both cases be reversed, and the defendants be discharged from further prosecution under said indictments: subject, however, to be tried under other indictments (if any be so found against them), setting forth the names (if such names be known), of the minors to whom ardent spirits were sold or furnished.”

See further monographic *notes*cited below.

Same — Sale without License — Indictment—Designation of Purchaser. — It is not necessary in indictments for retailing ardent spirits without license to aver the name of the person to whom the sale was made. This rule seems settled both in Virginia and West Virginia. See, citing the principal case. State v. Pendergast, 20 W. Va. 674; State v. Hughes, 22 W. Va. 758; State v. Ferrell, 30 W. Va. 685. 5 S. E. Rep. 156; *foot-note*to Com. v. Dove. 2 Va. Cas. 26; *foot-note*to Com. v. Smith, 1 Gratt. 553. See further, mono-graphic *note*on “Intoxicating Liquors” appended to Thon v. Com., 31 Gratt. 887; monographic *note*on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.

DUNCAN, J.,

delivered the resolution of the court. The court is unanimously of opinion, that on the trial of an indictment for retailing spirits without a license, charging that the sale was made “to persons to the jurors unknown,” proof that the persons were actually known to the jury, when it found the indictment, does not constitute a variance between the proof and the allegations of the indictment, so as to defeat the prosecution. This is in conformity with the decision of this court in Dove’s case, 2 Virg. Ca. 26, where the court decided, that an indictment for retailing spirits need not name the person to whom the liquor was sold. The insertion therefore, of the words “to persons to the jurors unknown” must be taken as surplusage.

The offence of retailing spirits, is distinguishable from that class of offences, where the act constituting the offence is an injury to a third person, such as a murder, larceny &c. in which the name of the injured party ought to be stated, when known. The reason of that rule does not apply to that class of offences, to which retailing spirits without a license belongs; offences in which the act constituting the offence is not an injury to third persons.

It is to be certified to the circuit superiour court of Harrison, that the judgment of the county court ought to be affirmed.