#### Commonwealth *versus*Peter Eaton.

In an indictment under *St,*1786, *c,*68, § 1, against a person as a common retainer of spirits without license, it is not necessary to allege that the spirits were sold in less quantities than twenty-eight gallons.

The indictment against the defendant set forth, that, without a license, he “ did presume to be a common seller of rum and other strong liquors by retail, and in his shop” did “ commonly and publicly sell and utter by retail, and did cause to be sold and uttered, by retail, rum and other strong liquors to divers good citizens,” &c.

The defendant, having pleaded not guilty and been convicted in the Common Pleas, appealed to this Court.

It was agreed by the parties, that the defendant, at the time alleged, did keep a small shop in which he sold pies, nuts, and gingerbread, and did there keep to sell, and when called on did sell to any person, rum and other strong liquors, by'the gill and half-gill, to be drunk in his shop. If these acts made the defendant liable to an indictment, as a common seller of rum &c. by retail, then the defendant was to retract his plea and plead guilty ; otherwise the indictment was to be dismissed.

This case was argued by Crosby, for the defendant, in writing, and by *Minot,*county attorney, for the Commonwealth, at the bar.

*Crosby.*

The facts which are agreed do not support the indictment, which is for being a *retailer*without license. The clause on which the indictment is founded provides, that “no person may presume to be a common victualler, innholder, taverner, or seller of wine, beer, &c. by retail, or in a less quantity than twenty-eight gallons, and that delivered and carried away all at one time,” without a license. *St.*1786, c. 68, § 1. The words *by retail*and retailer, in this statute, have throughout a technical meaning, which is stated in the clause cited. The words victualler, innholder, and taverner, are also defined in the statute. If the defendant had sold his liquor in less quantities than twenty-eight gallons and to be carried away, he would have been liable to this indictment as a common *seller by*retail, without license. But the *offence*which he has com-*169milled, which is that of selling liquor and suffering it to be drunk in his shop, would subject him to indictment as a common victualler, *innholder,*or *taverner,*but not as a retailer.— He might also have been indicted for each act of selling under another clause in the same section.

The indictment is insufficient, because it does not allege that the liquors were retailed “ in a less quantity than twenty-eight gallons,” &c. pursuing the words of the statute. In the statute, to sell by retail is explained to mean, in a less quantity than twenty-eight gallons. If the defendant sold spirituous liquors by the single hogshead or barrel, it would have been selling by retail, in the common meaning of the term, and yet no offence against the statute What is alleged in the indictment, therefore, is not necessarily an offence. *St.*1786, c. 68, § 1 ; 7 Dane’s Abr. 265, 266 ; Hawk. P. C. *bk.*2, c. 25, § 60; *The King*v. *Cheere,*4 Barn. & Cressw. 902 ; *Pearce*v. *Atwood,*13 Mass. R. 343 ; *Gore*v. *Brazier,*3 Mass. R. 540 ; *Holbrook*v *Holbrook,*1 Pick. 248.

*Minot*cited *Commonwealth*v. *Messenger,*4 Mass. R. 462.

*Per Curiam.*

It seems to us that the indictment is sufficient. The allegation that the defendant presumed to be a common seller, by retail, is enough, without alleging that the quantity was less than twenty-eight gallons. That may be deemed the legislative definition of the term *retail;*and it is matter of evidence for the defendant, to show that the quantities which he sold were not less. It is like the case of the *Commonwealth*v. *Messenger,*4 Mass. R. 462, a prosecution for a violation of the statute for the due observation of the Lord’s day ; in which the allegation, that the defendant worked on the Lord’s day, was held sufficient, although the statute defines precisely the hours which are to be considered the Lord’s day, and there was no allegation that it was within these hours that the offence was committed.

According to the agreement of the parties, the defendant m jst plead guilty to the indictment.