Lodano v. State

LIGON, J. — There was no error in overruling the demurrer. The indictment is evidently framed under the act of the 9th of February, 1852 (Sess. Acts 1851-2, p. 80), which enacts, that “ it shall not be lawful for any person or persons to retail or sell, in any quantity, spirituous liquors to any free person of color.” It has been frequently held, that, when an offence is created and fully defined by a statute, it will be sufficient to chai’ge it in the words of the statute. Such is the case in the present indictment; and the mere fact that the words “ then and there did retail and sell” are uselessly repeated, does not affect it in anyyway, as, on their recurrence, they are surplus-age, and may be struck out without injury to the indictment. The charge asked was properly refused. The Legislature of this State is not restricted by the constitution from imposing such conditions as they may deem proper, or as in their opinion the good of the community may require, upon those who are allowed to retail spirituous liquors, both as it regards the persons to whom they may sell, and the quantities in which they may be sold. This power, in some form, has been.constantly exercised in the license laws of this State. The retailer has never been allowed to sell his liquors to persons of known intemperate habits, nor, for many years past, could he sell to students, minors or slaves, unless it was done under certain restrictions imposed by law.'; ¡ But it is insisted, that inasmuch as John Jones, to whom the sale was made in this case, is a descendant of a woman of color, who was an inhabitant of Mobile under the Spanish rule, and as such included in the sixth article of the treaty by which Spain ceded that 67 city and the adjacent territory to the United States, which reserves to persons of Ms class greater rights than belong to others of the same class in other portions of the State, therefore, when the terms “free persons of color” are used in our statutes, they are not included unless specially named. Such is not the rule by which statutes should be interpreted. When a generic term is used, without any words of restriction in the statute itself, it includes every species which belongs to it; and in order to exempt the free persons of color protected by the treaty of cession from Spain to the United States from being included in the act of 1852, it should have been declared in the act itself that the terms used in it should not apply to them. Such is not the case, and we have no hesitation in saying, that it is as much a violation of that act to sell to one of them, as to any other free person of color in the State. There is no error in the judgment, and it is consequently affirmed.