Opinion by

If the defendant had been indicted generally and as an ordinary person, for selling liquor without license, the verdict would have sustained the sentence- and there would have been no error in the judgment. But he was not so charged. He was indicted specifically as a druggist for selling liquor, without license, to be used as a beverage. The verdict found him guilty of selling liquor without license simply, saying nothing about its being used as a beverage. The difficulty in the case is that as a druggist he was not necessarily guilty of any offense in the mere selling of liquor without license. He might sell without license, if he sold it in the preparation of medicine or on the prescription of a physician.

Had the jury found a general verdict of guilty there could have been no exception to it. But for some reason they did not do that, but found only a certain fact, and that fact against such a person is not of itself sufficient to convict of any crime. If the jury wished to find the facts specially, of course it was their duty to find all the facts which composed the crime charged. It is clear that under this indictment the defendant, being charged *177with selling liquor as a druggist, must be found to have sold it, not in the preparation of medicines and without the prescription of a physician, or at least that he sold it to be used as a beverage. Any one or all of these facts would have been presumed to be found had the verdict been generally guilty. But that not being the case, and only a part' of the facts being found which are necessary to make out a crime against a person charged as this defendant was, it follows that the verdict is insufficient to sustain the sentence. Of course, if the indictment had been general and the defefndant pleaded that he sold as a druggist, the burden of proof would have been upon him to show all the facts which gave him exemption. But as it was, the commonwealth, conceding the defendant to be a druggist, assumed the burden not only of charging but of proving his technical guilt as such. Failing to obtain either a general verdict of guilty or a special verdict wthich found a.ll the facts essential to establish the charge, the judgment should have been arrested.

As the defendant was certainly in jeopardy under the indictment and the evidence, we do not see how he can be again tried under the same indictment

The judgment of the court below is reversed, the sentence is set aside and the defendant discharged without day.