The opinion of the Court was by

This is an indictment against the defendant, for being a common retailer of spirituous liquors, without license; and comes before us upon exceptions taken, in the Court below, to the rulings and instructions of the Judge presiding there, on his trial. The first ground of exception, viz. that the Judge admitted certain citizens of Portland, where the offence was alleged to have been committed, to testify, was not insisted upon in argument, the same point having been recently decided, in another county, in conformity to the ruling of the Court on the trial in this case.

*406The principal reliance of the defendant’s counsel, was upon the 'supposed error in the ruling, that True W. Pettengill should be compelled to testify. It appeared that he was employed in the retailing of spirituous liquors, in the victualing cellar of the defendant; and that his compensation was to depend on the profits of the business; and he alleged, that, if the defendant should be compelled to pay a fine and costs, it would go to lessen the net profits, and that thereby his compensation would be diminished, and it was insisted that he was not compellable to testify under such circumstances. The Judge, on the trial, ruled that he was bound to testify; and we think very properly. It would be singular indeed, if, when one man commits a crime, another, who was to participate in the profits of it, could claim, for that reason, to be exempted from testifying against him. The law admits of no such ground of objection. In the argument it was contended, that the witness should not have been compelled to testify, because his testimony would tend to criminate him ; but no such position appears in the bill of exceptions to have been taken; and of course the argument in this particular was irrelevant.

The Judge was requested to instruct the jury, that, if the defendant was in the exercise of the occupation of a common victualer, he would not be amenable to the law if he sold ardent spirits to his customers. We think the Judge did right in refusing to give this instruction. The statute is general in its terms. All who take it upon them to be common sellers of spirituous liqudrs, without being licensed therefor, in less quantities than twenty-eight gallons at a time, are liable to the penalty, whether they take it upon themselves to be common victualers or not.

Exceptions overruled.