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1. INTOXICATING LIQUORS:. The selling or giving spirituous liquors to an Indian under the charge of an Indian Agent, by under the Statutes of the United States is a misdemeanor—not a felony.

2. : . Two counts in an in dictment, one for giving away and the other for selling spirituous liquors, do not render it bad for the reason that the jury return a general verdict of guilty.

3. : . Every allegation that is essential must be proved as laid, unless stated under a videlicet; the office of which is to mark that the party does not undertake to prove the piecise circumstances alleged.

4. : : . The allegation of time, place, quantity, quality, kind, and value, when not descriptive of the identity of the subject of the action, will be found immaterial, and may not be proved strictly as alleged. It is sufficient if the proof agree with the allegation in its substance and general character, without precise conformity in every particular.

5. : : . An indictment describing a thing by its general term, is supported by proof of a species which is clearly comprehended within such description. If the indictment charges that the defendant sold, to-wit: one pint of whisky, it is sustained, if it be proved that he sold or gave to the Indian spirituous liquors.

Writ of Error to Yankton County District Court.

This case comes to this court by petition in error under our statute of 1862.

The indictment was for selling and giving spirituous liquors to an Indian, in two counts. Trial by jury, October term, 1867, Second Judicial District,, C. J., presiding.

It charged in one count that the defendant wrongfully and unlawfully gave, and in the other that he unlawfully and wrongfully sold to a "certain Indian Chief, commonly known by the English name of the Man that was struck by the Ree, and whose Indian name is Pa-la-ne-a-pa-pe, * * * and being then and there under the charge of an Indian Agent," etc., "a quantity of spirituous and intoxicating liquors, to-wit: one pint of whisky." But it did not charge that the act was done feloniously.

On the trial, the plaintiff offered to introduce as a witness Pa-la-ne-a-pa-pe, an Indian. The defendant objected to his