#### William R. Jackson v. The People of the State of Illinois.

Intoxicating Liquors—Unlawful Sale—Original Paclcage—Jury— Officer in Charge Must be Sworn.

1. Sec. 1, Chap. 43, Laws 1887 (Starr & Curtis, 237), prohibits the sale of intoxicating liquors outside of the incorporated limits of any city, town, or village, except in original packages, and such packages must contain five gallons or more.

2. The requirement of the statute, that the officer placed in charge of the jury when they retire to make up their verdict must be sworn, can not be dispensed with even in misdemeanors, except by an agreement, noted upon the minutes of the court.

[Opinion filed June 13, 1890.]

In error to the County Court of Wayne County; the Hon. E. C. Kramer, Judge, presiding.

Messrs. R. P. Hanna, C. O. Ellis and Creighton & Cooper, for plaintiff in error.

Mr. F. B. Hanna, State’s Attorney, for defendants in error.

Reeves, P. J.

Plaintiff in error was indicted for selling intoxicating liquor in less quantity than five gallons outside the corporate limits of any city, town or village. The language of the statute is: “Whoever shall, outside of the incorporated limits of any city, town or village, by himself or another, either as principal, clerk or servant, directly or indirectly, sell, barter or exchange, or in any manner dispose of, for money or anything of value, any intoxicating liquor of any kind in any less quantity than five gallons, and in the original package as put up by the manufacturer, shall for each offense be fined,” etc. Sec. 1, Chap. 43, Laws 1887 (3. Starr & C. Ill. Stats., 237). Only two reasonable constructions can, our judgment, be placed upon this statute. First, that the sale in less quantity than five gallons, unless in the original package, is prohibited. Second, that the sale of intoxicating *89liquors outside incorporated cities, towns and villages is prohibited except in the original package as put up by the manufacturer, and these packages must contain five gallons or more. This latter construction, as it seems to us, is the more accurate, in view of the language used. Such sale, if not prohibited, is, by inference, permissible. What is not prohibited by this statute is, as to quantity, five gallons or more, and, as to condition, “ in the original package as put up by the manufacturer.” To say that a sale of less than five gallons is not prohibited unless in the original package as put up by the manufacturer, would permit the sale in any quantity if not in the original package. To say that the sale of less than five gallons, if in the original package, is not prohibited, would give a broader permission to sell than the general law, which prohibits the sale in less quantity than one gallon. If original packages of one pint or one quart could be sold under this statute, the prohibition would be less broad than the gallon statute. The object of the Legislature was evidently to enlarge the prohibition of the sale outside of cities, towns and villages. Hence, as we interpret this statute, it inhibits the sale except in original packages, and such packages must contain five gallons or more.

The officer who was placed in charge of the jury when they retired to make up their verdict, was not sworn as the statute requires. This requirement of the statute can not be dispensed with, even in misdemeanors, except by an agreement noted upon the minutes of the court. See Sec. 495, Chap. 38, Starr & C. Stats. Ill., 866. If it be shown that no injurious results of this omission followed to the defendant, this will not cure the error. It was no part of the duty of the defendant to see that the officer was sworn, or to object to his taking charge of the jury until he was sworn. It was the duty of the people to see that this was done, or that it was waived by an agreement entered on the minutes of the court. The provision of the statute is clear, explicit and peremptory, and, until modified or repealed, its requirement can not be dispensed with. McIntyre v. People, 38 Ill. 514; Lewis v. People, 44 Ill. 452.

The judgment of the County Court is reversed and the cause remanded. Reversed and remanded.