#### STATE v. CALVIN CRESS.

Where a penal act, upon which an indictment is founded, is repealed during the pendency of the indictment, the defendant is entitled to an acquital.

*422This was an ikdiotmeNt, tried before bis Honor, Judge Dick, at the Spring Term, 1857, of Rowan Superior Court.

The charge was for selling spirituous liquors by a measure less than fire gallons, against a statute regulating the town of Salisbury.

The jury found a special verdict to the effect that, on the 1st day of November, 1856, in the town of Salisbury, in the County of Rowan, the defendant did sell spirituous liquor by a measure less than five gallons, to wit, by one quart, not having then and there a license to do so from the board of commissioners or the said town; they further found that the Act of Assembly creating the offence had been repealed after the finding of the bill of indictment.

Upon this verdict the solicitor moved for judgment, which being refused by .the Court, he appealed to this Court.

Attorney General, for the State.

Boyden, for defendant.

Nash, C. J.

The defendant is indicted for selling spirituous liquors in the town of Salisbnry, by a less measure than five gallons. The private act, under which the indictment was drawn, was passed at the session of the Legislature held in 1818, whereby it was forbidden to any one to sell spirituous liquors within the corporate limits of the town of Salisbury, without a license therefor from the commissioners. The indictment here, was found at the Eall Term, 1856, of tho Superior Court of Rowan County. Since the finding of the indictment, the act of 1848, under which it was found, has been repealed. His Honor held that the indictment could not be sustained. In this we concur. The foundation on which the indictment rested being removed, the indictment must necessary fall to the ground. See Gov v. Howard, 1 Murp. Rep. 465.

Pee CubiaM. There is no error. Judgment affirmed.