(after stating the facts). Chapter 175, § 34, Acts of 1885, relating to the sale of spirituous liquors, requires a license: “ First, for selling in quantities less than a quart, &c. Second, for selling in quantities of one quart and less than five gallons, &c. Third, for selling in quantities of five gallons or more, &c. * * * Nothing in this section con*473tained shall prevent any person selling the liquors or wines of their own manufacture, at the place of manufacture, or any person from selling spirits or wines, the products of his own farm, without the license prescribed in paragraph two and three.”
The special verdict finds that the defendant was a licensed distiller under the laws of the United States; that the whiskey Was of his own manufacture, and that it was sold at his store, 300 or 400 yards from his distillery, but on the same premises.
The facts, that the defendant was a licensed distiller, and that the whiskey was of his own manufacture, affords no immunity, if he sells contrary to the regulations and requirements of the laws of the State. State v. Joyner, 81 N. C., 534, and the eases there cited.
Nor is a sale made 300 or 400 yards from the distillery, though on the defendant’s farm, made “ at the place of manufacture,” within the meaning of the statute. This is settled by State v. Whissenhunt, 98 N. C., 682.
But the indictment charges a sale “ by the measure less than a gallon,” and the special verdict finds, substantially, that the defendant sold “ one gallon of whiskey.” It will be noted that the saving clause in the section does not apply to the first paragraph or clause — that is, for selling in quantities less than a quart — but only to the second and third; and the indictment is fatally defective, in that it fails to so specify the offence as to show whether the defendant is charged under the first or second paragraphs. Less than a gallon may be a quart, or a pint, or a gill, and the finding of the jury does not aid the indictment, and judgment ought to have been arrested.
We suggest, whether an indictment, whether drawn under the second or third paragraph, should not negative the fact that the liquor sold was of the defendant’s own manufacture, and sold at the place of manufacture, or the *474products of his own farm, as seems to have been done in State v. Whissenhunt, supra. See State v. Stamey, 71 N. C., 202; State v. Miller, 7 Ired., 275; and State v. Loftin, 2 D. & B., 31.
Let this be certified.
Judgment arrested.