State v. Brooksbank

CourtUnited States State Supreme Court of North Carolina
Citation28 N.C. 73,6 Ired. 73
Decision Date31 December 1845
PartiesTHE STATE v. JOSEPH BROOKSBANK.
OPINION TEXT STARTS HERE

Keeping an open shop and selling goods on Sunday, is not an indictable offence in this State.

Profanation of Sunday is only punishable here by certain pecuniary penalties, imposed by the Legislature, and to be recovered before Justices of the Peace.

The case of the State v. Williams, 4 Ired. 400, cited and approved.

Appeal from the Superior Court of Law of the County of Cumberland, at the Fall Term, 1845, his Honor Judge CALDWELL presiding.

The indictment in this case charges, that the defendant, being a common Sabbath-breaker and profaner of the Lord's day, commonly called Sunday, on the 1st day of September, 1844, being the Lord's day, and on divers other days, &c. in the town of Fayetteville, in Cumberland County, did keep a common, public, and open shop, and in the same shop did then, &c. being the Lord's day, openly and publicly expose to sale, and sell spirituous liquors to divers persons to the jurors unknown; and concludes, to the common nuisance and at common law.

On not guilty, pleaded, there was a verdict for the State, but the Court arrested the judgment; and the Solicitor appealed.

Attorney General, for the State .

Warren Winslow and D. Reid, for the defendant .

RUFFIN, C. J.

The acts imputed to the defendant are lawful, and constitute no offence, unless it may be in respect of the time at which they were done; for it is lawful for the defendant to keep an open shop in Fayetteville, and sell thereat spirituous liquors. The question is, whether it is criminal to do so on Sunday.

The indictment is framed upon the precedent, in 2 Chit. Cr. L. 20, which is taken from the Crown Circuit Companion. Notwithstanding the precedent, and what is said by some writers on the law, it may be doubted, whether, in the Superior Courts in England, the profanation of Sunday, merely as such, would be held to be indictable; and this, for the reasons suggested in State v. Williams, 4 Ired. 400. If this indictment would lie there, how can the Act of 29th Car. 2, c. 7, be accounted for, which forbids the working on Sunday, under a penalty of five shillings, and the selling of goods on Sunday, under the pain only of forfeiting them. However, if such an indictment be sustainable in England, it must be, as we conceive, and stated in the case referred to, because working or trafficking on Sunday is, according to the doctrine of the established...

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6 cases
  • Rodman v. Robinson
    • United States
    • United States State Supreme Court of North Carolina
    • 29 Marzo 1904
    ...the judge deemed it necessary, though out of considerations of propriety it ought not to be done unless necessary. In State v. Brooksbank, 28 N. C. 73, Ruflin, C. J., held that it was not Indictable to sell goods in open shop on Sunday, and in State v. Williams, 26 N. C. 400, the court, thr......
  • State v. McGee, 508
    • United States
    • United States State Supreme Court of North Carolina
    • 6 Mayo 1953
    ...to a pecuniary fine or penalty, recoverable by summary proceeding before a justice of the peace. State v. Williams, 26 N.C. 400; State v. Brooksbank, 28 N.C. 73; Rodman v. Robinson, 134 N.C. 503, 47 S.E. 19, 65 L.R.A. 682, 101 Am.St.Rep. 877. Moreover, while this statute was in effect it wa......
  • Rodman v. Robinson
    • United States
    • United States State Supreme Court of North Carolina
    • 29 Marzo 1904
    ...Sunday if the judge deemed it necessary, though out of considerations of propriety it ought not to be done unless necessary. In State v. Brooksbank, 28 N.C. 73, Ruffin, C.J., held that it was not indictable to sell in open shop on Sunday, and in State v. Williams, 26 N.C. 400, the court, th......
  • State v. Medlin
    • United States
    • United States State Supreme Court of North Carolina
    • 20 Octubre 1915
    ...... therefore the town has not the authority to adopt an. ordinance covering the same subject. But Revisal, § 2836,. "forbidding work in ordinary callings on Sunday". under penalty of $1, does not make keeping open shop and. selling goods on Sunday an indictable offense. State v. Brooksbank, 28 N.C. 73; State v. Ricketts, 74. N.C. 187. To same effect, Melvin v. Easley, 52 N.C. 356, which holds:. . . .          "The. statute in its operation is confined to manual, visible, or. noisy labor, such as is calculated to disturb other people,. for example, keeping open ......
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