¶1This was an indictment against John Farrell and Patrick Boyle foa? retailing spirituous liquor without license.
¶2There'were two counts in the indictment. The second count was, on motion, properly quashed.
¶3The first count charges, that Farrell and Boyle, on, &c., at, &c., bartered and sold two gills of spirituous liquor to one Samuel T. Jenkins, for the sum of two half-dimes, they, the said Farrell and Boyle, then and there not having a license, according to the laws in force at the time, permitting them so to do, &c. Plea, not guilty.
¶4The cause was submitted to the Court, and the following evidence was given on the trial, viz.: It was proved by Samuel T. Jenkins, that within six months next before the finding of the indictment, he had purchased spirituous liquor, by a less quantity than a quart at a time, from each of the plaintiffs, separately, at the same bar and in the same house; but he never purchased any from both of them; that he did not know that they were partners in the business, at the time he purchased the liquor; but the business of the house and bar in which he bought the liquor was always done in the name of Farrell, and he supposed that Boyle was hired by Farrell to do business for» him. It was also proved by the city clerk of Evansville, that the business of said house was always done in the name of Farrell, and that all licenses granted for vending spirits in that house were granted to Farrell alone.
¶5The Court, upon the above evidence, found Farrell and Boyle guilty. Judgment for the state.
¶6The finding of the' Court cannot be sustained. The charge in the indictment is, that the sale of spirituous liquor to Jenkins was the joint act of Farrell and Boyle; while the evidence proves that a joint sale was not made; that the several sales to him were made by them separately, and at different times. Nor was it shown that either of them, in any way, participated in the act of the other.
¶7We think there is a fatal variance, between the charge as laid in the indictment and the evidence adduced.to support it. 2 Russell on Crimes, 711.
¶8The judgments reversed. Cause remanded, &c.