State v. Tisdale , 145 N.C. 422 ( 1907 )

Beown, J.

It is unnecessary to consider any of tbe exceptions taken by tbe defendant on tbe trial, as bis exception to tbe bill of indictment is well taken, and tbe motion to arrest tbe judgment must be allowed. Tbe first count charges tbe unlawful sale of liquor, without a license, to some person to tbe jurors unknown, in violation of tbe general law. Tbe second count charges tbe unlawful sale to some person to tbe jurors unknown, within territory wherein tbe sale of liquor is wholly prohibited by law. Tbe third count is as follows: “Tbe jurors aforesaid, upon their oaths aforesaid, do further present: That the said Nathan Tisdale, late of tbe county of Craven, on 20 September, 1906, unlawfully and willfully, did engage in and carry on tbe business of retail liquor dealer, by selling spirituous and malt liquor to divers persons in tbe city of New Bern, said city of New Bern being an incorporated town, where tbe sale of spirituous and malt liquors is forbidden by law, and where tbe majority of tbe qualified voters of said city bad voted against tbe sale of spirituous, vinous and malt liquors in said city and for prohibition, contrary to tbe form of the statute in such case made and provided, and against tbe peace and dignity of tbe State.” Tbe State entered a nol. pros, as to tbe first and second counts. Tbe Court below overruled defendant’s motion as to tbe insufficiency of tbe third count, and tbe defendant was tried and convicted upon that count alone.

This count does not charge tbe defendant with a sale of liquor to any specific person by name, nor does it charge a sale to any person whose name is unknown to tbe jurors. It charges that tbe defendant did engage in and carry on tbe general business of a retail liquor dealer in tbe city of New Bern, where tbe sale of liquor is prohibited by law.

Tbe learned counsel for tbe State rely upon section 2060 of tbe Eevisal to sustain tbe bill. This section provides that tbe pdssession or issuance to any person of a license to manufacture, rectify or sell, at wholesale or retail, spirituous or malt liquors by tbe United States Government or any officer thereof in any county, city or town where tbe manufacture, sale or rectification of spirituous or malt liquors is forbidden by tbe laws of tbe State, shall be prima, facie evidence that tbe person having such license, or to whom tbe same was issued, is guilty of doing tbe act permitted by tbe said license, in violation of tbe laws of this State. There is nothing in it, or any other statute to which our attention has been-called, or which we have been able to find, which supports tbe contention of tbe State. It is evident tbe General Assembly never thought it necessary to create any such specific offense as carrying on tbe general business of retailing liquor in territory where its sale is entirely forbidden. In such territory liquor is a contraband, and the sale of it. is a secret transaction. The bill of indictment may charge a sale to some person by name, or to some person unknown to the jurors. It must charge one or the other. State v. Stamey, 71 N. C., 202. In an indictment for the unlawful sale of liquor it is not sufficient to charge the defendant generally with the offense of illegal selling. The facts constituting the offense must be set forth. State v. Faucett, 20 N. C., 239. “Every necessary ingredient in the offense must be set forth,” says Judge Daniel for the Court, in that case, and he then proceeds to state the exceptions to the rule, viz., indictments against a common barrator, a common scold, for keeping a common gambling house or bawdyhouse.

In State v. Stamey the identical point is decided, as it was in Faucett’s case, both being indictments for selling liquor. In State v. Blythe, decided in 1835, the question seems to have been first presented to this Court. It is there held, in an opinion by Chief Justice Ruffin, that the indictment was defective because the names of the slaves to whom the liquor was sold were not set out in the bill. The learned Chief Justice says: “Every indictment ought to have convenient certainty as to time, place and persons, and give to the accused reasonable notice of the specific facts charged on him, so that he may have an opportunity of defending himself. Here the indictment conveys no information of that sort.”

The same principle of criminal pleading is set forth in State v. Ritchie, 19 N. C., 29. The Stamey case is cited with approval in State v. Pickens, 79 N. C., 654; State v. Miller, 93 N. C., 516; State v. Foy, 98 N. C., 746; State v. Hazell, 100 N. C., 474; State v. Dalton, 101 N. C., 683; State v. Farmer, 104 N. C., 889; State v. Gibson, 121 N. C., 681. This rule of criminal pleading is recognized by the common law, and is founded upon a just regard for the rights of persons charged with crime. Archb. Crim. Prac., 41, 42. It is not a technical refinement of the law. Had it been, it would have long since been discarded and would never Lave survived up to 1897, wben the last opinion citing Stanley's case was written by the present Chief Justice.

The reason for setting forth the name of the person to whom the liquor is sold is because each sale constitutes a distinct offense, for which the offender may be punished. When the name of the vendee of the liquor is given, the particular transaction on which the indictment is founded is identified. The accused then has notice of the specific charge, and may have the benefit of the first acquittal or conviction if accused a second time of the same offense.

Judgment Arrested.