UNIFORMITY REQUIRED.-Uniformity, in its legal and proper sense, is inseparably incident to the power of taxation, whether applied to taxes on property or to those imposed on trades, professions, etc. Moore, 113-697. LIGHTNING-RODS.-Defendant was the agent for the sale and delivery in this state of manufacturers of lightning-rods in another state, and such sale and delivery included the putting up of said rods whenever the purchaser so requested, for which no extra charge was made. The rods were shipped in bulk to the agent who broke the package for distribution to his customers: Held, that defendant was an itinerant, putting up lightningrods within the meaning of the revenue act; that the connection between the pursuit of such avocation and the sale of articles manufactured in another state was so remote in its effect as to impose no burden upon the business of interstate commerce; that the breaking of the original packages before the sale and delivery divested the transaction of any feature of interstate commerce. Gorham, 115-721.

GOODS MANUFACTURED IN ANOTHER STATE. The right of a state to tax trades, professions and avocations within the borders of the state is unquestionable, though the goods dealt in be manufactured in another state. Gorham, 115-721.

UNREASONABLE TAX-VOID.-A statute imposing a license fee of $1,000 for carrying on the business of an "emigrant agent," there being no regulation of such occupation, and therefore no expense in supervising it, is void for unreasonableness of the license fee; and besides the large license fee being prohibitory of the business the statute is void as an exercise of police power. Moore, 113-697.

LIMITATIONS.

Sec. 393 (1177). Indictment for misdemeanor to be commenced in two years, exceptions thereto. R. C., c. 35, s. 8. 1826, c. 11.

All misdemeanors, except the offences of perjury, forgery, malicious mischief, and other malicious misdemeanors, deceit, and the offence of being accessory after the fact, now made a misdemeanor, shall be presented or found by the grand jury within two years after the commission of the same, and not afterwards: Provided, that in case any of the said misdemeanors, hereby required to be presented within two years, shall have been committed in a secret manner, the same may be prosecuted within two years after the discovery of the offender: Provided further, that if any indictment found within that time shall be defective, so that no judgment can be given thereon, another prosecution may be instituted for the same offence, within one year after the first shall have been abandoned by the state.

INDICTMENT WITHOUT PRESENTMENT.-An indictment prepared by the solicitor and sent to the grand jury, no presentment having been made, is not a presentment, and where such bill for a misdemeanor was sent

and an investigation begun, but continued for want of material witnesses, the grand jury returning the bill with that indorsement into court with their presentments, and at a subsequent term, but more than two years after the commission of the offence, the bill is sent to another grand jury and returned a true bill, the prosecution is barred. Morris, 104-837. SLANDER. The slander of an innocent woman being a malicious misdemeanor, is not within the operation of the statute of limitations. Claywell, 98-731.

BURDEN OF PROOF.-It is incumbent on the state to prove that the offence was committed within two years before indictment found. Carpenter, 75-230.

SECOND BILL. AFTER PLEA IN ABATEMENT.-Where, after a successful plea in abatement, a second bill is sent, the second bill is but a continuation and part of the former proceeding, and the prosecution is not barred because more than two years elapsed since the commission of the offence and before the finding of the second bill. Hailey, 51 (6 Jones), 42.

OFFENCES COMMITTED IN A SECRET MANNER.-On indictment for marrying a female under fifteen years of age, proof that the marriage was by consent of the mother and was solemnized by a minister in the presence of six or seven persons, and that the parties afterwards lived together openly as man and wife, will protect defendant from the operation of the proviso in case the offence is committed in secret. Watts, 32 (10 Ired.), 369. PRESENTMENT PREVENTS THE STATUTE FROM RUNNING.-A presentment is the commencement of a prosecution and prevents the statute from running. Cox, 28 (6 Ired.), 440.

PUBLIC HIGHWAY--OBSTRUCTION.-This statute has no application to indictments for obstructing a public highway by putting up a house thereon, since the offence is a continuous one. Long, 94-896.

ABANDONMENT.--Abandonment is not a continuous offence, and an indictment found more than two years after the act of abandonment is barred by the statute of limitations. Brown, 67-470.

ABATEMENT OF NUISANCE.-No length of possession can operate as a bar to an abatement of a nuisance on behalf of the public. Holman, 104-861. SEDUCTION. The exemption from the two years limitation applies to the offence of seduction, since deceit is the very essence of the offence. Crowell, 116–1052.

INDICTMENT NEED NOT ALLEGE TIME.-It is not necessary to allege that the two years had not expired before bringing the indictment. Watts, 32 (10 Ire.), 369.

OTHER TIME PROVED.--The state, on a trial for a misdemeanor, is not restricted to the time stated in the indictment, but may prove any act of the defendant committed within two years before the legal presentment of the offence. Newsom, 47 (2 Jones), 173.

WARRANT. The taking out of a warrant, which was dismissed at the hearing, does not prevent the bar of the statute. Mason, 66-636.

INDICTED UNDER WRONG NAME.-An indictment against a person by a wrong name which is pleaded to in abatement and the plea found for defendant, is nevertheless the same cause of action, and the lapse of two years is no bar to the prosecution. Hailey, 51 (6 Jones), 42.

BASTARDY. This section does not apply to a bastardy proceeding, as such proceeding is controlled by section 36 of The Code. Hedgepeth, 122 -1039. Perry, 122-1043.

Bastardy is an exception to the general provisions of the statute, and as to that offence the special limitation of three years applies. Perry, 122-1043.

Sec. 393 (1076). Liquor selling, retailing without license. R. C., c. 34, s. 94. 1825, c. 1272, s. 5. 1874-'5, c. 39. Passim, 1798, c. 501. 1816, c. 906.

If any person shall retail spirituous liquors by the small measure in any other manner than is prescribed by law, he shall be guilty of a misdemeanor, and shall be fined or imprisoned, or both, in the discretion of the court.

WHAT CONSTITUTES A SALE.-Where defendant, having a license to sell not less than a quart, allows a witness to go to a barrel of whiskey when he pleases and draw a drink until he considers he has been paid a debt of $1.25, he is guilty of selling by the measure less than a quart. Poteet, 86-612.

A statute made it a misdemeanor to sell liquor within four miles of a certain locality, and defendant who had a still without the territory agreed with a party within the territory to sell him liquor, which was also delivered within the four miles: Held, that there was a sale within the four miles, and the defendant was guilty. Sykes, 104-694.

A club distributed liquors which were on hand to certain of its members who placed them in the hands of defendant, who was their steward, to be held by him, not for the club as a club, but for those individual members of the club as tenants in common, the share of each not being kept separately, but mingled in the same jars, casks and demijohns. From time to time, as each of those members wished, he obtained drinks from the defendant for himself and friends, paying therefor in money, or giving tickets to be afterwards redeemed in money, as near as may be the cost price of the drinks so furnished, and with the money the defendant from time to time replenished the stock of liquors: Held, that there was a sale. Following State v. Lockyear, 95-633. Neis, 108-787.

An agreement to deliver to the purchaser, from time to time, liquors in parts of a quart as he should call for them, with an engagement on his part to take, in the whole, a quart in quantity, and an engagement on the part of the seller not to exact payment until that quantity should be received, constitutes the seller a retailer by the small measure. Kirkham, 23 (1 Ire.), 385.

Defendant received at his home and place of business, in this state, in a territory within which the sale of whiskey is prohibited, an order from a person living in another state for a certain quantity of whiskey at an agreed price, and in pursuance of such order delivered the whiskey at a railroad station, also within the prohibited territory, for shipment to the purchaser at his home in the other state: Held, that the transaction was a sale of whiskey within the prohibited territory, and the question of interstate commerce does not affect the guilt or innocence of the defendant. Groves, 121-632.

A liquor dealer is criminally responsible for the unlawful sale by his agent of liquors to minors, though such sale may have been against his instructions and without his knowledge. Kittelle, 110-560.

TRICK-DEVICE.-A witness testified that he applied to defendant for liquor; that defendant said he could not get it unless he had a bottle: witness gave him a bottle and a small sum of money, and defendant went off, and in a short while returned with a bottle of whiskey, and said he

charged a small sum for getting it, which was paid: Held, error to charge that if the jury believed the evidence defendant was guilty, without further telling them to consider the bona fides of the transaction. Taylor, 89-577.

Defendant had a room in which was a table with a hole in the top, and a decanter of liquor and tumblers were on the table. Witness at sundry times went into the room, poured out a drink and took it, dropped a nickel in the hole for each drink, defendant being present and nothing said between him and the witness: Held, that the court properly charged that if the jury believed that the liquor belonged to defendant, and that he received the money for it, and that this was simply a device to evade the law, he would be guilty. McMinn, 83-668.

The prosecuting witness sent for some whiskey by defendant, gave defendant some money and told him to bring him some whiskey, which he did, and nothing was paid defendant for bringing it: Held, that the transaction was prima facie a sale, and the burden was on defendant to show, if he could, that he was acting as the agent of the prosecuting wit ness, or that the sale was otherwise legal. Smith, 117-809.

INDICTMENT.--An indictment, containing only one count, which charges several distinct offences, is bad for duplicity, and a demurrer or motion to quash will be sustained, but if a nol pros. is entered as to all but one charge, and defendant goes to trial and is convicted the defect is cured. Cooper, 101-684.

An indictment for selling "intoxicating liquors" is sufficient without specifying the particular kind of liquor. Packer, 80-439.

An indictment under Laws 1887, c. 135, sec. 35, for selling liquors in quantities greater than a quart should negative the facts that the spirits were of defendant's own manufacture, or were sold at the place of manufacture, or were the product of his own farm. Approving State v. Whissenhunt, 98-682. Dalton, 101-680.

An act prohibiting sales within a certain distance of an academy is a public local statute, and need not be pleaded in the indictment. Wallace, 94-827.

Where a statute makes it indictable to sell liquor within two miles of a certain place, but the act is not to go into operation until an election is held, an indictment under the act must aver that such election has taken place. Chambers, 93-600.

Where a statute simply provides that it shall be "unlawful" to sell whiskey within a certain territory, a violation of its provisions is indictable at common law. If a statute prohibits a matter of public grievance, or commands a matter of public convenience, all acts or omissions in violation of its provisions being misdemeanors at common law, are indictable and punishable, if the statute prescribes no mode of proceeding. Parker, 91-652.

Where the indictment, under Laws 1885, c. 175, sec. 34, alleges that defendant sold by the measure "less than a gallon," and there is a special verdict finding that defendant sold "one gallon," the judgment must be arrested. The indictment is fatally defective for failure to specify the offence so as to show whether the charge is for a violation of the first or second paragraph of the act. Hazell, 100--471, and also Sutton, 98474, same point.

If the legislature enacts a law in the terms of a former one, and at the same time repeals the former, this amounts to a re-affirmance of the former law, which it does not, in legal contemplation, repeal. Sutton, 100-474.

The indictment must allege a sale to some particular person or persons or to some person or persons to the jurors unknown. Faucett, 20 (4 D. & B.), 108.

It is not necessary that an indictment for violating a local prohibitory act should refer to the statute. Snow, 117-778.

A reference to the wrong act in the indictment is immaterial and mere surplusage. Snow, 117-778.

An indictment charging the violation of a certain section of a statute need not specify that the act charged does not come within an excep tion created in a subsequent section of the same statute. Downs, 116— 1064.

It is not necessary for the indictment to refer to the statute prohibiting sales within a certain distance of a church, since the statute is a public local one, of which the courts will take judicial notice. Downs, 1161064.

Where the indictment charges a sale within two miles of "Bethel Methodist church in Macon county," and the special verdict describes t church as "Bethel church in Macon county," the variance is immaterial. Downs, 116-1064.

It is not necessary to specify the kind of liquor sold, as that is a matter of evidence. Downs, 116-1064.

THE INTENT.-The intention with which an unlawful sale of liquor was made is immaterial. Downs, 116-1064.

INCONSISTENT STATUTES.-Where two statutes are inconsistent and irreconcilable the last will prevail though there is no repealing clause. Monger, 111-675.

ADVICE OF COUNSEL NO EXCUSE.-The unlawful sale of liquor is not excused by the fact that the defendant, acting under the advice of counsel, believed that the particular sale was not a violation of law. Downs, 116-1064.

TOWN INCLUDED IN PROHIBITED TERRITORY.-A law prohibiting the sale of intoxicating liquors within two miles of a certain church is valid, notwithstanding a part of the territory so specified is within the limits of a town whose charter had prior to such enactment empowered it to license liquor selling. Snow, 117—774.

DENTIST.-A dentist is not a physician within the meaning of this section, and his prescription for liquor for the toothache does not justify one in selling liquor on Sunday. McMinn, 118–1259.

WHAT IS SPIRITUOUS LIQUOR.—Liquor produced by running the beer through the still only once, commonly called "singlings," is spirituous liquor within the meaning of the law forbidding the sale of "spirituous liquors." 60 (1 and 2 Winst.), 108.

Where a liquor, by common knowledge or observation, is intoxicating, the court may so declare, but if it is doubtful whether it is intoxicating or not, then it is a question for the jury. Scott, 116-1012.

Where the evidence is that defendant drank four bottles of brandy peaches and became drunk thereby, it is for the jury to determine whether the liquor was spirituous and intoxicating. Scott, 116-1012.

COMMON KNOWLEDGE OF INTOXICATING QUALITY OF LIQUOR.-It is not error to refuse a motion for a new trial after verdict of guilty on an indictment for selling "intoxicating liquors" on the ground that defendant sold only port wine, and there was no evidence that it was intoxicating, since its intoxicating quality is a matter of common knowledge, and can be passed on by the jury without proof. Packer, 80-439.