Commonwealth v. Grey

Metcalf, J.

It is a general rule, that an indictment, information or complaint, most not charge a party disjunctively, so aa *502 to leave it uncertain what, is relied on as the accusation against him. 2 Hawk. c. 25, § 58. 1 Chit. Crim. Law, 231 . 1 Stark. Crim. Pl. (2d ed.) 245. Thus an indictment, which averred that S. made a forcible entry into two closes of meadow or pasture, was held to be bad. Speart’s case, 2 Rol. Ab. 81. So of an information which alleged that N. sold beer or ale without an excise license. The King v. North, 6 Dowl. & Ryl. 143. See also Rex v. Morley, 1 Y. & Jerv. 221; Ex parte Pain, 5 B. & C. 251; Rex v. Sadler, 2 Chit. R. 519; Davy v. Baker, 4 Bur. 2471 .

When the word “ or ” in a statute is used in the sense of “ to wit,” that is, in explanation of what precedes, and making it signify the same thing, a complaint or indictment, which adopts the words of the statute, is well framed. Thus it was held, in Brown v. Commonwealth, 8 Mass. 59 , that an indictment was sufficient, which alleged that the defendant had in his custody and possession ten counterfeit bank bills or promissory notes, payable to the bearer thereof, and purporting to be signed in behalf of the president and directors of the Union Bank, knowing them to be counterfeit, and with intent to utter and pass them, and thereby to injure and defraud the said president and directors; it being manifest from St. 1804, c. 120, § 2, on which the indictment was framed, that “ promissory note ” was used merely as explanatory of “ bank bill,” and meant the same thing. So in The State v. Gilbert, 13 Verm. 647 , an information was held sufficient, which alleged that the defendant feloniously stole, took and carried away a mare “ of a bay or brown color;” the court saying that the colors named in the information were the same. And if spirituous liquor and intoxicating liquor were the same, and the word “ intoxicating ” had been used in St. 1852, c. 322, as a mere explanation of the word t( spirituous,” the complaint in the present case would have been rightly drawn. But the two words are not synonymous. All spirituous liquor is intoxicating; yet all intoxicating liquor is not spirituous. In common parlance, spirituous liquor means distilled liquor; and such, we believe, is its meaning in the statute. Fermented liquor, though intoxicating, is not spirituous.

A complaint or indictment on the statute should charge the *503 defendant, either with selling spirituous liquor, or with selling intoxicating liquor, or with selling spirituous liquor and intoxicating liquor. The latter form is usually adopted; and it is well settled that it is a proper form, and that proof of the defendant’s having sold either spirituous liquor or intoxicating liquor, as well as proof of his having sold both, will support the indictment. 1 East P. C. 402. Angel v. Commonwealth, 2 Virg. Cas. 231. The State v. Price, 6 Halst. 203.

As the complaint against these defendants leaves it uncertain whether they are charged with having sold spirituous liquor, or intoxicating liquor which is not spirituous, we must hold it, upon the authorities above cited, to be insufficient to sustain a judgment. Judgment a/rrested.