¶1The indictment charged that the defendant “ did distill vinous or spirituous liquors without license, and contrary to law.” The offense is, engaging in, or carrying on, a business for which a license is required, without first obtaining the license. — Acts 1868, p. 330, § ill. When a new offense, unknown to the common law, is created by statute, its constituents, if specified in the act,'must be embodied in the charge. — Eubanks v. The State, 17 Ala. 181. The indictment failed to charge an offense.
¶2The second and third charges asked by the defendant, and given, correctly express the law of the case. A distiller is one whose occupation is to extract spirit by distillation. — (Web. Die.) To constitute occupation some time is a necessary ingredient. It need not be protracted, but must not be momentary. The intention must govern, and must be ascertained by the jury. If the profit i§ the inducement, a very little time will suffice,
¶3*417It was not necessary to prove both of the defendants guilty in order to conviet one, but as they were jointly indicted, if the proof had shown only the commission, by each, of a separate offense, a verdict could not have been rendered against either, or both. — Elliott v. The State, 26 Ala. 78. The charge refused was irrelevant, as no testimony was introduced tending to implicate the defendant drew.
¶4The judgment is reversed and the cause remanded.