State v. Downs
| Decision Date | 30 April 1895 |
| Citation | 21 S.E. 689,116 N.C. 1064 |
| Court | North Carolina Supreme Court |
| Parties | STATE . v. DOWNS et al. |
Intoxicating Liquors—Illegal Sales—Verdict —Indictment—Intent—Defenses.
1. Where an indictment charged the unlawful sale of spirituous liquors within two miles of "Bethel Methodist Church in Macon county, " a verdict describing the church merely as "Bethel Church in Macon county" did not constitute a material variance.
2. An indictment charging the unlawful sale of spirituous liquors need not specify what kind of spirituous liquors was sold.
3. The unlawful sale of spirituous liquors is not excused by the fact that the defendant, acting under advice of his counsel, believed that the particular sale was not a violation of the law.
4. The intention with which an unlawful sale of intoxicating liquors was made by one having no authority to make the sale for any purpose is immaterial.
5. A government license for the sale of intoxicating liquors will not protect the holder thereof from prosecution by the state for selling in violation of state laws.
6. An indictment charging the violation of a certain section of the statute need not specify that the act charged does not come within an exception created by a subsequent section of the same statute.
Appeal from superior court, Macon county; Shuford, Judge.
G. W. Downs and others were convicted of the unlawful sale of spirituous liquors, and appeal. Affirmed.
J. P. Ray, for appellants.
The Attorney General, for the State.
The indictment charges the sale of spirituous liquor within two miles of Bethel Methodist Church in Macon county. The statute (Acts 1881, c. 234) and the verdict both describe the church simply as "Bethel Church in Macon county." There is nothing to indicate that the church is not one and the same. The added word "Methodist" in the indictment is simply harmless surplusage or immaterial variance. State v. Eaves, 106 N. C. 752, 11 S. E. 370. There is nothing tending to show that there was any ambiguity or more than one Bethel Church in the county, as in State v. Partlow, 91 N. C. 550, or that the defendants were in any wise prejudiced in their defense or misled as to the church which was meant.
It was not necessary that the indictment should specify the kind of spirituous liquor sold. That was a matter of evidence. State v. Packer, 80 N. C. 439. Nor was it necessary to refer to the statute in the indictment, as it was a public local statute. State v. Wallace, 94 N. C. 827.
Neither was it any defense that before making sale of the liquor the defendants, on inquiry of counsel, were told that the church was not incorporated, and that it would be no violation of the law for the defendants to sell within two miles thereof at the place of manufacture, in quantities less than a gallon. "Ignorance of the law excuses no one, " and the vicarious ignorance of counsel has no greater value. State v. Boyett, 32 N. C. 336. The law does not encourage ignorance in either. State v. Dickens, 2 N. C. 406. If ignorance of counsel would excuse violations of the criminal law, the more ignorant counsel could manage to be, the more valuable, and sought for, in many cases, would be his advice.
The criminal intent is not the intent to violate the law, but the intentional doing the act which is a violation of law. It is...
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