majority">Ellsworth, J.

This is an information against the prisoner, under the 29th section of the act of 1854, for the suppression of intemperance. The offence is described in the act, as “being- found intoxicated,” and is the same offence as being found drunk, which has been a statute offence in this state, from a remote period.

By the seventeenth section of the act of 1854, it is provided “ if any person shall be found in a state of intoxica*9tiou, any sheriff, &c., without iuarrant, may take such person into custody and detain him until he shall be recovered from his intoxication, &c., when he may make full disclosure of whom he procured the liquor, and under certain circumstances he may be discharged from further prosecution. This seventeenth section introduces a new proceeding into this branch of the law; the obvious design of which is, to ferret out places where liquor is kept and sold, and to punish the clandestine vendor of it, rather than his unhappy victim. The drunkard is supposed to be taken while in the state of drunkenness, as he is to be detained until he becomes sober, &c.; but the offence intended in the 29th section is, being or having been found drunk. If the person has been found drunk, he maybe complained of by a grand-juror, and regularly prosecuted, like any other offender.

The objects of the two sections are entirely different; the 17th is to prevent the sale of liquor, the 29th is to prevent intoxication, by punishing the drunkard. Now the 29th section contains the words 'found intoxicated,” in the description of the offence, and if this word be important, or has any distinct meaning in describing the offence, the present complaint is defective, for the word found is not in it, nor any equivalent word, but the defendant is only charged with having been intoxicated on a certain day. We can not wholly discard the word in looking after the statute offence, especially in construing a penal statute, although it may be true that the condition of having been intoxicated, is the offence aimed at by the law, in section 29th, whether or not the person was, at the time, seen, or, as the statute says, found in that condition. Practically, the distinction is of very little if any importance, as no person, probably, has been prosecuted for drunkenness, who was not, at the time he was drunk, seen to be so; but it might be otherwise, and we do not feel at liberty to discard from the act which makes the crime, any circumstance which enters into its description or definition. We think it not at all unlikely, that the popular belief is, that having been intoxicated, and being found intoxicated, mean about the same thing, and that this com*10plaint, which is said to be after the form in Swift, does correctly describe the real offence aimed at by the legislature in the 29th section of the law, viz., being drunk, let it be provable in whatever way it may. This exact question has never been made in our courts, within our knowledge, so that we are called upon for the first time, to interpret the law according to our best judgment, and if we are wrong, it will be easy for the legislature to correct the error.

We advise judgment for the prisoner.

In this opinion the other judges, Stores and Hinman, concurred.

Complaint insufficient.

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