State v. Shoaf

• Decision Date: 07 April 1920
• Docket Number: 345.
• Citation: 102 S.E. 705,179 N.C. 744
• Parties: STATE v. SHOAF.
• Court: North Carolina Supreme Court

102 S.E. 705

179 N.C. 744

STATE v. SHOAF.

No. 345.

Supreme Court of North Carolina

April 7, 1920

Appeal from Superior Court, Forsyth County; Ray, Judge.

Fred Shoaf was convicted of unlawfully selling goods on Sunday and he appeals. Error.

A place where wieners and sandwiches were sold, guests seating themselves on stools near a counter, there being no tables was a "restaurant" or "cafe" within the meaning of Pub.Loc.Laws 1919, c. 320, excepting such places from the Sunday Law, the terms "restaurant" and "cafe" being substantially synonymous; a "restaurant" being a place where refreshments food, and drink are served, being indiscriminately used as a name for all places where refreshments can be had, from a mere eating house and cookshop to any other place where tables are furnished, to be consumed on the premises, and a "wiener" being a small sausage of unknown contents commonly called a "hot dog" (citing Words and Phrases, Restaurant).

Defendant was charged with the offense of "unlawfully and willfully exposing for sale his goods and keeping open his place of business on Sunday" in violation of Public Local Laws of 1919, c. 320, which reads as follows, omitting immaterial parts thereof:

"No person, firm or corporation in Forsyth county shall expose for sale, sell or offer for sale on Sunday, any goods wares or merchandise within four miles of the corporate limits of any incorporated town or city; and no store, shop, or other place of business in which goods, wares or merchandise of any kind are kept for sale shall keep open doors from 12 o'clock Saturday night until 12 o'clock Sunday night: Provided, that this act shall not be construed to apply to hotels or boarding houses, or to restaurants or cafés furnishing meals to actual guests, where the same are not otherwise prohibited by law from keeping open on Sunday."

The only witness was E. E. Wooten, who testified:

"I know Fred Shoaf, the defendant. He runs what is called a 'wiener joint' at Hanestown, a village about three miles west of Winston-Salem. I have seen defendant selling lunches, wieners, and egg sandwiches on Friday night, Saturdays, and Sundays. I did not take the names of the people who bought from him. I saw him selling these things on two different Sundays within the last six months at Hanestown, in Forsyth county. He had no tables in his place, but had a counter with stools along in front of it, and his customers occupied those stools while eating."

The place at which defendant sold these meals, or lunches, was within two miles of the corporate limits of Winston-Salem. At the close of the evidence the defendant moved for judgment of nonsuit. Motion denied, and he excepted. He was convicted, and appealed from the judgment.

W. T. Wilson and J. B. Craver, both of Winston-Salem, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

WALKER, J. (after stating the facts as above).

The facts in this case bring it directly within the purview of the exemption, and not within the prohibition of the statute, being excepted from it by the proviso.

The terms "restaurant" and "café," in common parlance, and, we think, as used in the statute, are substantially synonymous. A restaurant is generally understood to be a place where refreshments, food, and drink are served. Whether they are served to guests seated at a table or on stools at a counter does not affect the definition; that being...