State v. . Newcomb

DOUGLAS, J., dissents. The indictment is as follows: NORTH CAROLINA — GUILFORD COUNTY. Superior Court, December Term, 1899. The jurors for the State upon their oath present: That E. G. Newcomb, late of the county of Guilford, on 7 November, 1899, at and in the county aforesaid, and in the city of Greensboro, unlawfully and willfully did sell and retail to James D. Taylor, spirituous liquor, the said E. G. Newcomb, not then and there being manager for or agent or servant of the dispensary board for the city of Greensboro, empowered to sell as provided by Laws 1899, chapter 254, of the Public Laws, contrary (1105) to the form of the statute in such case made and provided, and against the peace and dignity of the State. BROOKS, Solicitor. *Page 717 The defendant was convicted, and from the judgment rendered appealed to the Supreme Court, where he moved in arrest of judgment on the ground that the indictment does not aver that the dispensary was in operation upon 7 November, 1899, when the offense charged was committed. The motion was overruled. This is an indictment for selling liquor in Greensboro contrary to the provisions of the act creating a "dispensary" in that town. Laws 1899, ch. 254. The defendant frankly and properly abandoned here the exceptions upon which the appeal has come up, conceding that they had been settled by the decision in Garsed v. Greensboro, ante, 159, which sustained the constitutionality of the act. The sole point now raised is a motion in arrest of judgment, made for the first time in this Court (probably an afterthought), on the ground that the indictment does not aver that the dispensary was in operation upon 7 November, 1899, when the offense charged was committed. The act was ratified on 24 February, 1899. Section 1 thereof makes the sale of spirituous liquor, otherwise than is therein provided, a misdemeanor; and section 3 provides that the dispensary board shall establish the dispensary "on 1 July, 1899, or as soon thereafter as possible," and that "there shall be no prosecution under the (1106) provisions of this act for the sale of liquor until said dispensary is open." The clear presumption is, nothing else appearing, that the law went into force on 1 July, 1899, and if it did not, the fact which would withdraw the defendant from liability is a matter of defense which he might have set up, if the evidence and his admission had not been the other way. The rule of pleading in criminal actions has been long settled by uniform decisions, that where the matter which would withdraw a case from the operation of a statute creating a criminal offense (here section 1) is in another section of the statute (here section 3), or indeed, when in the same section if it is in a proviso, then such matter is not required to be negatived by the indictment, but must be set up on the trial as a matter of defense. S. v. Downs, 116 N.C. 1064, citing S. v. George, 93 N.C. 567;S. v. Lanier, 88 N.C. 658; S. v. Heaton, 81 N.C. 542; S. v. Tomlinson,77 N.C. 528; S. v. Norman, 13 N.C. 222. In the last named case, Henderson, C. J., draws a clear distinction between a proviso which withdraws a case from the operation of a statute, which is a matter of defense and need not be negatived in the indictment, and a condition upon the existence of which the statute depends, *Page 718 which must be averred. It has since been approved, among other instances, in S. v. Davis, 109 N.C. 780, and S. v. Melton, 120 N.C. 591. The indictment charges that the defendant "on 7 November, 1899, at and in the county of Guilford, and in the city of Greensboro, unlawfully and willfully did sell and retail to James B. Taylor spirituous liquor, the said E. G. Newcomb not then and there being manager for, or agent or servant of, the dispensary board for the city of (1107) Greensboro, empowered to sell as provided by the act of 1899, ch. 254, Public Laws, contrary to the statute in such case made and provided." The motion in arrest admits the truth of these allegations, and indeed, it is determined by the verdict; and as the defendant seeks by this motion to withdraw himself from liability to the statute, contrary to whose provisions it is both admitted and found that he made the sale, it was incumbent upon him to prove such fact in his defense. S. v. Ballard,6 N.C. 186. This is not like S. v. Chambers, 93 N.C. 600, chiefly relied on by the defendant. That was not a case where the act was to go into effect on a day named, subject to be suspended if something were not done, which is this case, but the act was not to go into effect at all until upon a vote of the people it was affirmed and made a law. Of course, in the latter case, it must be both averred and proved that the vote, which was essential to the validity of the act, was in favor of making it a valid statute. Here the act is positive, and goes into effect on the date therein specified, with a provision withdrawing the selling of liquor from prosecution thereunder "until said dispensary is open" — thus making the defeasance a matter of defense, for unless the defeasance is shown the statute is in force from 1 July. It is no more necessary to aver in the indictment that the sale was after the opening of the dispensary than it would be to aver that any other act, made criminal by statute, took place after the statute was passed. S. v. Fleming, 107 N.C. 905. If the occurrence was before the time at which such act became criminal, that is a matter of defense arising upon the evidence. S. v. Ballard, supra. If it were necessary to put in an indictment, now a negative averment that this sale was not before the dispensary opened, the same averment would be necessary in every indictment under the statute for all (1108) the years to come as long as it is in force. S. v. Fleming, supra. The other cases cited by the defendant are all cases in which the exception is named in the same clause which created the offense, and it is not negatived in the indictment, and therefore upon its face the offense described in the act is not charged. Indeed, this was also the case in S.v. Weaver, supra, where it is said, "The indictment does not sufficiently *Page 719 charge an offense under the statute," which "provides that in a contingency specified in it, depending upon a popular vote to be taken as therein directed, it shall be unlawful to sell spirituous liquors," etc.; hence in the face of the indictment, it not appearing that the contingency dehors upon which the statute was to have validity had occurred, proof of sale did not prove its illegality. Here, the statute being valid, any fact dehors which would withdraw the defendant from its operation, is a matter of defense. The sale is alleged on 7 November, 1899, and the motion in arrest of judgment admits the fact — which, besides, was not controverted on the trial. There can be, in fact, no injustice done by the defendant, for there is an express admission in the record by him that the dispensary was opened in the city of Greensboro under said act on 1 July, 1899, and has been in operation ever since. If the judgment could, under the settled rules of criminal procedure, be arrested, it would therefore be a vain thing, and of no benefit to the defendant. Though this consideration should not avail to defeat the defendant of any legal right, if such he had, to have the judgment arrested, still, it shows the wisdom of the rule that such matters are defenses to be set up and proved by the defendant who seeks to withdraw himself from the operation of a statute creating a (1109) criminal offense. Affirmed. Cited: State v. Goulden, 134 N.C. 746. (1112)