State v. Hollingsworth

• Decision Date: 19 May 1888
• Parties: State v. Hollingsworth.
• Court: North Carolina Supreme Court

6 S.E. 417

(100 N.C. 535)

State

v.Hollingsworth.

Supreme Court of North Carolina.

May 19, 1888.

1. Criminal Law—Indictment—Failure to Indorse Names of Witnesses.

Code N. C. § 1742, requiring the foreman of the grand jury, when the oath is administered by him, to mark on the bill the names of the witnesses examined, is directory merely, and a non-compliance therewith is neither ground for motion to quash, nor arrest of judgment.

2. Intoxicating Liquors—Sales near Churches—Jurisdiction op Superior Courts.

Act N. C. 1887, c. 417, making it illegal to sell liquor within two miles of a church in H. county, and providing that a person so offending shall be deemed guilty of a misdemeanor, and. fined and imprisoned at the discretion of the court, confers jurisdiction on the superior court of that county over an indictment for unlawfully selling liquor within two miles of that church.

3. Same—Illegal Sales—Prohibition to Sell within Two Miles of Churches.

The local option law (Code N. C. § 3116) provides that an election in favor of license shall not affect localities in which the sale of liquors is prohibited by law. The town of H. voted for license. Held, that sales in H. were illegal, as it was "within two miles of a" certain church, a locality within which the sale of liquor is "prohibited by law, "under act N. C. 1887, c. 417.

Appeal from superior court, Henderson county; Merrimon, Judge. Hollingsworth and Allen were indicted for illegally selling intoxicating liquors. Hollingsworth was convicted, and appeals.

The Attorney General and Batahelor & Devereux, for the State.

Davis, J. The defendant and one Allen were indicted for unlawfully selling spirituous liquors, and tried before Merrimon, J., at the spring term, 1888, of the superior court of Henderson county. The indictment contained two counts: the first, for retailing without license; and the second, for unlawfully selling spirituous liquors within two miles of Mud Creek Baptist Church, contrary to the statute, etc. When the case was called for trial, and before the jury was impaneled, the defendants moved to quash the indictment " upon the ground that it did not appear from any indorsement upon the bill that the only witness, J. A. Bryson, had been sworn or examined before the grand jury. It did appear that the grand jury had returned said bill in open court as "a true bill, " and the name of the witness was indorsed on the back of the bill, and a record of said bill and return was duly made by the clerk. The motion was overruled, and the defendants excepted. Defendants then moved to dismiss for want of jurisdiction, and insisted that the revenue act of 1887 conferred jurisdiction upon courts of justices of the peace in all cases where liquors are retailed without license in quantities less than a quart. Motion overruled, and defendants excepted. The solicitor abandoned—in effect entered a nol pros, to—the first count, and the defendants then entered plea of not guilty, and were tried upon the second count alone. It was in evidence that the defendants had sold liquor within three months prior to the trial (which was the term of the court at which defendants were indicted) in the town of Hendersonville, in a building occupied by them, on Main street, near the post-office. It was also in evidence that "by surface measurement, " a part of the town of Hendersonville, including the building where the defendants sold, was within two miles of Mud Creek Baptist Church. It was also in evidence, on the part of the defendants, that on the first Monday in June, 1887, an election was held under the local option act, in the town of Hendersonville, at which election a majority of the qualified voters voted "for license." It was insisted on behalf of the defendant "that, being charged with selling spirituous liquors only within two miles of Mud Creek Baptist Church, it was no longer necessary for him to exhibit a license from the sheriff of the county,...