¶1delivered the following dissenting opinion,
¶2Section 1 of the act of the General Assembly, passed March 19, 1818, entitled “An act to prohibit the sale of intoxicating liquors near institutions of learning,” enacts that “it shall not be lawful for any person to sell or tipple any intoxicating beverage-within four miles of an incorporated institution of learning,” &c.
¶3Harney was presented and convicted for selling and tippling within four miles, &c. The proof is that he bought a drink of whisky from M. Singleton.
¶4The court charged that “if the defendant bought the drink of whisky outside of an incorporated town and within four miles of the Vanderbilt University, an incorporated institution of learning, then and in that event he would be guilty as charged, as there are no accessaries in misdemeanors, but all are guilty who have any guilty participation in the crime charged.”
¶5A sale is an agreement by which one of the contracting parties gives a thing and passes the title to-it, in exchange for a certain price in current money, to the other party, who on his part agrees to pay such price: 2 Kent, 363.
¶6To constitute a valid sale there must be — 1. Proper parties; 2. A thing which is the object of the contract j 3. A price agreed upon; and 4. The consent of the contracting parties and the performance of certain acts required to complete the contract: Bouvier’s Law Dictionary.
¶7*119By the terms of the foregoing definition, a buyer is as necessary to a sale as the seller. ■ It is the buying and selling combined that constitutes the sale.'
¶8Bouvier defines a tippling house to be “a place where spirituous liquors are sold and drank in violation of law.” From this it seems that both a sale and a drinking are necessary to constitute the act of tippling. Certainly the seller cannot tipple by himself; he must have a purchaser, and that purchaser is of course a party to the tippling. It requires the concurring wills and acts of the two to constitute the offense.
¶9Webster defines tipple, “to drink, as strong liquors, in luxury or excess.” If this be the true definition, it would seem that the drinker is alone the tippler.
¶10We think, however, that the. true rule is, that both seller and buyer are necessary to the offense, and that the term tipple, in a legal sense, means a sale and consumption. .
¶11The latter part of the charge is well supported. In Conlin v. The State, 4 Yer., 143, the court says: “In all the lesser offenses, all persons who are in any manner concerned therein, if guilty at all, are principals and equally guilty”—citing 1 Chitty’s Crim. Law, 261.
¶12In Harper v. The State, 3 Lea, 211, this court said: “If a prescription be a subterfuge to evade the law, the druggist, physician and buyer are liable to indictment or presentment.” See, also, Newman v. State, 7 Lea.
¶13In State v. Bonner, 2 Head, 136, Judge McKinney *120says: “We suppose it cannot be seriously controverted that, upon general principles, the purchaser of spirituous liquors -in violation of the statute passed to suppress tippling, is as much guilty of a violation of the law, and as much amenable to criminal prosecution and punishment, as the seller. They are in all respects particeps criminis; they are alike willful vio-laters of the law. The express prohibition to sell, upon every just principle of construction, must be considered as implying a prohibition to purchase. The purchaser, whether we regard his intent or the effect and consequences of his act, is no less guilty, no less within the mischief intended to be suppressed, than the seller. I't matters not that the- former is placed under the obligation of a bond or oath. This takes nothing from the force of the argument. He still stands guilty of wilfully participating in and aiding and encouraging the commission of a criminal offense. Does not this, upon the soundest principles of criminal law, constitute -him a principal in the offense? We think it does. And perhaps it would be scarcely going too far to say, that he ought to be regarded as less excusable than the seller. He has not the poor pretext of the latter, that the forbidden traffic is, in part, his means of procuring a living.”
¶14This decision was made in 1858, and has been ihe recognized law ever since, and we can see no good reason for overruling it after a lapse of nearly a quarter of a century. The presentment is sustained by both the letter and spirit of the statute, and strikes at the evil intended to be remedied.