An indictment which charges the sale of intoxicating liquor in language equally applicable to the offence describes in Gen. Laws, c. 189, s. 13, and that described in s. 15 of the same chapter, is insufficient.
BINGHAM, J.
Section 13, c. 109, Gen. Laws, provides that "If any person not being an agent of a town for the purpose of selling spirit shall sell or keep for sale any spirituous liquor, in any quantity, he shall be fined fifty dollars; and for any subsequent offence he shall be fined one hundred dollars, or be imprisoned not exceeding ninety days, or both."
Section 15 provides that "If any person not being an agent of a town for the purpose of selling spirituous liquors, shall sell or keep for sale cider in less quantities than ten gallons, except when sold by the manufacturer at the press, or in an unfermented state, or lager beer or other malt liquors not included in the list of those already prohibited by law, in any quantity, such person shall be fined ten dollars, and for any subsequent offence fifty dollars.
The crime and penalty of the thirteenth section are different from those in the fifteenth; and the indictment, not informing the respondent of which of the crimes he is charged, is bad for uncertainty. State v. Messenger, 58 N.H. 348. Neither does it show which of the two sections the respondent is accused of violating State v. Sherburne, 58 N.H. 159; State v. Naramore, 58 N.H. 273, 275; State v. Adams, 51 N.H. 568.
Indictment quashed.
SMITH J., did not sit: the others concurred.