Zaccanti v. State

Kirby, J., (after stating the facts). This indictment charges the sale of liquor without first procuring a license, as required by section 5093 of Kirby’s Digest, the punishment for which offense is prescribed by section 5112 of the Digest, which makes provision for different and greater penalties upon the second and third conviction of a similar offense, with a proviso as follows: “Where more than one indictment is found against the same party or parties at the same term of court, if it be the first charge or charges of this nature against the party or parties, the same punishment shall be inflicted under each indictment as if it were the first offense, and each day of such unauthorized selling shall constitute a separate offense.” It is insisted that, since both of the sales of liquor charged against the defendant occurred on the same day at the same time, they constitute but one offense under said proviso, and the Attorney General confesses error, and we are of the opinion that the confession of error should be sustained. The proviso is to be construed with reference to the immediately preceding parts of the clause, to which it is attached. Lewis’ Sutherland, Statutory Construction, §§ 352, 420; Friedland v. Sullivan, 48 Ark. 213; United States v. Bobbitt, 1 Black, 94; McRae v. Holcombe, 46 Ark. 310; Towson v. Denson, 76 Ark. 306. It is stated therein that ‘ ‘ each day of such unauthorized selling shall constitute a separate offense,” and the meaning is so clear and plain as to admit of no other construction, and, by the use of such language, it could not have been the intention of the Legislature to make each sale a separate offense, but only each day’s unauthorized selling without regard to the number of sales made where it is the first offense, as designated in said proviso. This being the first offense and the sales both being shown to have been made on the same day, but one offense was committed, and but one conviction could be had therefor. The court erred in denying the plea of former conviction .and in refusing to instruct a verdict for appellant. The judgment is reversed, and the cause dismissed.