45 S.E. 862 | N.C. | 1903
The defendant was indicted jointly with one Sides for selling spirituous liquor without license. The indictment set forth three counts. The first count charges a sale by said Sides and the defendant, "by the small measure, viz., by a measure less than one quart, to wit, three pints," alleging, further, that the said Sides had no license to retail. The second count charges a sale by Sides and the defendant, they not being licensed druggists and said spirituous liquor not being sold for medical purposes only and not upon a bona fide prescription of a legally practicing physician. The third count charges a sale by said Sides and the defendant of one pint of spirituous liquor, a local election duly authorized by statute having been held, at which total prohibition of the sale of spirituous liquor in said county had been adopted.
The evidence was that the party named as purchaser in the indictment (one Tucker) had bought three pints of whiskey of said Sides, and had then and there paid Holder the price of the whiskey. There was no evidence of copartnership between Holder and Sides. The court charged the jury that if they found beyond a reasonable doubt that Sides and Holder sold three pints of whiskey to the witness Tucker, it was their duty to find them guilty; otherwise, not guilty. The defendant excepted and, there being a general verdict of (711) guilty, appealed from the judgment.
The defendant asked the court to instruct the jury that there was not sufficient evidence to convict the defendant upon any count in the indictment. The court refused, and the defendant excepted. The State admits there was no evidence on the third count, but it is well settled in this State that where there is more than one count in the indictment, and there is a general verdict, this is a verdict of guilty on each count, and if there is a defect as to one or more counts by reason of any defect therein, or erroneous charge as to said count, or lack of evidence, the verdict will be imputed to the sound count in the indictment, as to which there was no erroneous instruction and upon which evidence is offered. S. v. Toole,
The defendant, however, contends that the charge should have been given because it was not shown that the sale was in the county, nor within two years. But objection to venue is waived unless objection is taken in apt time by plea in abatement. S. v. Lytle,
The defendant moved an arrest of judgment in this Court because it is not charged that Holder "had no license to sell." This motion must be sustained. It is true that a conviction of Sides (if appealed from) would be sustained by proof that Holder sold as his agent (S. v. Kittelle,
The second count is also fatally defective on the same ground, for while it charges that both Holder and Sides, not being druggists, sold spirituous *543
liquor not for medicinal purposes, nor upon prescription, etc., it fails to negative their having license to retail. Approved precedents are so readily accessible it is to be regretted that solicitors should in any case tax the time and patience of courts with defectively drawn bills of indictments, especially in such matters as this, where indictments are of common occurrence. Nor do we comprehend the charge of a sale "by measure less than a quart, to wit, three points." Only one sale was shown, and the court should have charged as asked, that if the "three pints were sold at one time and in one transaction," it would not sustain the charge of a sale by a measure less than a quart. S. v. Poteat,
The third count seems unobjectionable in form, but the State admits that there was no evidence to support that count (S. v. Chambers,
New trial.
Cited: S. v. Burton,
(714)