¶1This was an information against Wetzler, for violating the act providing penalties for the desecration of the Sabbath. Acts 1855, p. 159. The information charges that the defendant was found, on the Sabbath, unlawfully at common labor, in selling to Robert Miner, for the sum of five cents, two cigars.
¶2Trial; conviction and judgment. It may be questionable whether the information was good, inasmuch as it is not clear that the selling of “ two cigars ” should be regarded as “ common labor,” and as it is not alleged that selling cigars was the usual avocation of the defendant; but nothing is decided in this respect, as the sufficiency of the information is not here called in question, though a motion to quash was made below.
¶3Upon an examination of the evidence, we are satisfied that the charge was not made out by the proof; hence, a new trial, which was asked for, should have been granted.
¶4The judgment is reversed, and the cause remanded.