State v. Tisdale

• Decision Date: 03 October 1907
• Parties: STATE v. TISDALE.
• Court: North Carolina Supreme Court

58 S.E. 998

145 N.C. 422

STATE v. TISDALE.

Supreme Court of North Carolina

October 3, 1907

Appeal from Superior Court, Craven County; Neal, Judge.

Nathan Tisdale was convicted of carrying on the business of retail liquor dealer in a city where the sale of liquor was prohibited, and he appeals. Judgment arrested.

Clark C.J., dissenting.

W. D McIver and R. A. Nunn, for appellant.

Assistant Attorney General Clement, D. L. Ward, and L. I. Moore, for the State.

BROWN J.

It is unnecessary to consider any of the exceptions taken by the defendant on the trial, as his exception to the bill of indictment is well taken, and the motion to arrest the judgment must be allowed. The first count charges the unlawful sale of liquor without a license to some person, to the jurors unknown, in violation of the general law. The second count charges the unlawful sale to some person, to the jurors unknown, within territory wherein the sale of liquor is wholly prohibited by law. The third count is as follows: "The jurors aforesaid, upon their oaths aforesaid, do further present: That the said Nathan Tisdale, late of the county of Craven, on the 20th day of September, 1906, unlawfully and willfully did engage in and carry on the business of retail liquor dealer, by selling spirituous and malt liquor to divers persons in the city of Newbern, said city of Newbern being an incorporated town where the sale of spirituous and malt liquors is forbidden by law, and where the majority of the qualified voters of said city had voted against the sale of spirituous, vinous, and malt liquors in said city and for prohibition, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state." The state entered a nol. pros. as to the first and second counts. The court below overruled defendant's motions as to the insufficiency of the third count, and the defendant was tried and convicted upon that count alone. This count does not charge the 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 the jurors. It charges that the defendant did engage in and carry on the general business of a retail liquor dealer in the city of Newbern, where the sale of liquor is prohibited by law.

The learned counsel for the state rely upon section 2060 of the Revisal to sustain the bill. This section provides that the possession or issuance to any person of a license to manufacture, rectify, or sell, at wholesale or retail, spirituous or malt liquors by the United States government or any officer thereof in any county, city or town, where the manufacture, sale, or rectification of spirituous or malt liquors is forbidden by the laws of the state, shall be prima facie evidence that the person having such license, or to whom the same was issued, is guilty of doing the act permitted by the said license, in violation of the 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 the contention of the state. It is evident the General Assembly never thought it necessary to create any such specific offense as carrying on the 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 bawdy house. 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, 18 N.C. 199, 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, 53 Am. Rep. 469; State v. Foy, 98 N.C. 746, 3 S.E. 524; State v. Hazell, 100 N.C. 474, 6 S.E. 404; State v. Dalton, 101 N.C. 683, 8 S.E. 154; State v. Farmer, 104 N.C. 889, 10 S.E. 563; State v. Gibson, 121 N.C. 681, 28 S.E. 487. 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 have survived up to 1897, when the last opinion citing Stamey'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.

WALKER J. (concurring).

It seems to me that the distinction between the sale of liquor under a general prohibitory statute, of the character of that upon which this indictment was drawn, and the like offense when the act is prohibited, for instance, near a church, or other place, is simply this: That in the former there may be repeated indictments for different offenses, while in the latter the crime consists in doing the prescribed act in, or near, a certain place, or within a given distance of a certain locality. Where there may be numerous indictments arising out of different offenses, as where a man sells liquor in violation of the general statute, the name of the person to whom the liquor is sold should be given, by every elementary rule of criminal pleading, which has been adopted to protect the defendant from double punishment and to enable him to make his defense and to successfully plead his former conviction or acquittal, for there may be many offenses committed by the violation of the same law, on different occasions. Not so, perhaps, where the offense consists in selling in a prohibited place. It makes no difference to whom the defendant sold, so that it appears that he had sold within the prohibited distance of the church, or other place intended to be protected. Selling in the prohibited place is the offense. The writer of this opinion is not willing, at present, and without further reflection, to assent to the doctrine that, even in the latter case, the name of the purchaser should not be given, if known, because we should always be careful to safeguard the defendant against a second prosecution for the same offense, as it is abhorrent to us-living, as we do, under a system of laws and a constitution which forbids double punishment-to impose two penalties for the same crime. It is contrary to the fundamental principles of the common law, to Magna Charta, and to the Bill of Rights. Const. art. 1; Com. v. Blood, 4 Gray (Mass.) 31; Capritz v. State, 1 Md. 569; Dorman v. State, 34 Ala. 216. We should be careful therefore to see that, in administering the criminal law, whether in pleading, evidence, or practice, we do not depart from this manifestly just and well-established principle. The people of this state, who are really and substantially the prosecutor in all criminal proceedings, do not ask that any man be punished, or even be exposed to punishment, twice for the same criminal act. Justice Bynum, who always stated a principle of law with conciseness and vigor, in State v. Stamey, 71 N. C., at page 203, says: "The purpose of setting forth the name of the person on whom the offense has been committed is to identify the particular fact or transaction on which the indictment is founded, so that the accused may have notice of the specific charge and have the benefit of an acquittal or conviction if accused a second time." See, also, State v. Blythe, 18 N.C. 199; State v. Ritchie, 19 N.C. 29; State v. Faucett, 20 N.C. 239, and, in the reports of other states, State v. Allen, 32 Iowa, 491; State v. Steedman, 8 Rich. (S. C.) 312; Dorman v. State, supra; Capritz v. State, supra; Com. v. Blood, supra. Mr. Bishop, in his work on Statutory Crimes (1873 Ed.) § 1037, classifies the courts in respect to their decisions upon this subject, and places this court with those who have held that it is essential to a valid indictment to state the name of the person to whom the liquor was sold. He also recognizes the distinction between the cases which I have attempted to point out in this opinion. State v. Steedman, supra. No one, of course, in this particular prosecution, is seeking to punish the defendant twice for...