¶1By the Court,
¶2This and three other cases of the same character came to this court through the appellate course of procedure from the judgment of a justice of the peace of Richland, county, wherein the defendant was found guilty, *671who took an appeal to the circuit court of the same county, wherein he was also found guilty, and judgment accordingly.
¶3The only question arising in this case rests upon the following instruction given by the judge, to the jury, on the trial in the court below, viz : “ That if the jury were satisfied that the said defendant sold intoxicating liquors of the kind mentioned in the complaint, to the person named therein, at or about the time stated in said complaint, it was their duty to render a verdict of guilty;” to which instruction the defendant excepted.
¶4The selling of intoxicating liquors has never yet been held to be a crime or offence malum in se, but wherever denounced, an act malum, prohibitum.
¶5Therefore it would seem that when there is an attempt to restrain the citizen from doing an act or pursuing a course which is not, in itself, conceded, to be in violation of law, but only prohibited by the positive enactment of the government, the power which attempts to restrain should be bound to show that the subject of its restraint is within the scope of its prohibition.
¶6Hence we are of the opinion that it was the duty of the prosecution in this case to show, by presumptive proof at least, that the defendant was not licensed to do the act, which by the common law he had a right to do.
¶7It may possibly be that the prosecution on the trial in the court below did exhibit presumptive evidence that the defendant had, in fact, no license. But the charge of the court below is so broad and comprehensive that it might have tended to, and probably did, mislead the jury.
¶8The judgment must therefore be reversed and the cause remanded.