¶1 delivered the opinion of the Court:
¶2 The indictment charges that the Defendant is a common Sabbath-breaker and prophaner of the Lord’s day. If it had stopped here, it would certainly have been insufficient, as it would not shew how or in what manner he was a common Sabbath-breaker and prophaner of the Lord’s day. The Court upon an inspection of the record, must he able to perceive the alleged criminal act: for an indictment, as was once well observed from this bench by Judge Lowric, is a compound of law and fact — the latter part of the indictment charges that the Defendant kept an open shop and sold divers goods, wares and spirituous liquors to negroes and others on the Sabbath. This offence, as charged, is not punishable by indictment for if the act can be intended to be lawful, it shall be so presumed, unless it be charged to be done under circumstances which render it criminal, and be so found by a Jury. For ought that appears to the contrary, this sale might have been to the lame or weary traveller, or to others to whom it was a merit to sell instead of a crime ; and nothing shall be intended against a Defendant. And if this were the Sabbath-breaking spoken of in the foregoing part of the indictment, taking the whole together, the Defendant well might have done all charged against him, and yet have *226 committed do crime ; and as tins may have been the case, wo are bound to presume it ; at least, not to presume to the contrary. — The judgment must be arrested. -