3 Del. 565 (Del.Oyer.Ter. 1842), State v. Bennet

Citation3 Del. 565
Opinion JudgeLayton, Justice
AttorneyRogers, for defendant,
Judge Panel(Booth, Chief Justice dissenting.)-
CourtCourt of Oyer and Terminer of Delaware

Page 565

3 Del. 565 (Del.Oyer.Ter. 1842)




Court of Oyer and Terminer of Delaware.


Fall Sessions, 1842

Indictment for selling spirituous liquor sustained by proof of the sale of common cordial.

The defendant was indicted for selling spirituous liquor by a measure less than a quart to one John C. Wilson.

John C. Wilson .-Bought a pint of peppermint cordial of defendant; paid him eight cents for it. It was strong drink; would intoxicate; don't know what cordial is made of.

Robert Polk .-Has been a merchant. The common cordials sold in stores are made of whiskey, sweetened, and scented with peppermint, or other things. It is a mixed liquor to this extent.

Rogers, for defendant,

objected that the proof did not sustain the indictment, which was for selling spirituous liquor, and the proof was of a sale of mixed liquor. The act of assembly, ( Dig. 519,) distinguishes between spirituous and mixed liquors, and the indictment must distinguish. Indeed, though the practice has been otherwise, he contended that the rules of criminal pleading required that an indictment should distinguish the precise kind of liquor sold, whether brandy, gin, whiskey or other spirituous liquor, or a mixed liquor.

The act prohibits the sale of " any wine, rum, brandy, gin, whiskey or any spirituous liquor, by any measure less than a quart, or any punch or other mixed liquor by any measure whatever."

The Court divided.

Layton, Justice delivered the opinion of a majority of the court, (Booth, Chief Justice dissenting.)-

The act not only particularizes several kinds of liquor, but prohibits the sale of any kind of spirituous liquor under general terms. If the act had stopped at an enumeration of wine, rum, brandy, gin, & c., an indictment for selling any one of these specifications would not be supported by proof of selling another kind; but the specification being followed by a prohibition of selling any spirituous liquor by a measure less than a quart, it is not necessary, and has not been the practice, to specify in the indictment the kind of spirituous liquor sold.

Then, there being a further prohibition of selling " any punch or other mixed liquor by any measure whatever," the question is made whether cordial, such as that usually sold in the stores, and such as was sold in this case, comes under...

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