State v. . Dalton
8 S.E. 154
N.C.
1888
Check Treatment
Davis, J.

(after stating the case.) The only evidence as to the time when the alleged offence was committed, shows that it was in January or February, 1887, before the enactment of chapter 135 of the Laws of 1887, which was March *682 7th, 1887, but so far as it relates to the offence charged in the indictment, it is immaterial whether it occurred under ch. 175, §34, of the Acts of 1885, or ch. 135, §35, of the Acts of 1887, as they do not differ in r. spect to the matters, charged in the indictment. The slight changes made in the former by the latter in no way affect the penalties imposed, and as to them the latter does not repeal the former. State v. Sutton, 100 N. C., 474.

Whether under the act of 1885 or 1887, the punishment does not exceed a “ fine of $50 or imprisonment for thirty days, and a Justice of the Peace had exclusive original jurisdiction ” within six months after the commission of the-offence.” After six months the Superior Court might assume jurisdiction, if official cognizance had not been taken by a Justice of the Peace, and the ruling of his Plouor upon the-question of jurisdiction was correct. The Code, § 892.

This disposes of the defendant’s exception to the refusal of his Honor to quash the indictment, and also of the-exception to the charge in regard to the jurisdiction.

As to the questions involved in the exceptions to the refusal of the Court to charge as requested in regard to the sale for medicinal purposes upon the prescription of a physician, and to the charge in relation thereto as given, there has been-some conflict in judicial decisions; but in the late case of The State v. McBrayer, 98 N. C., 619, Merrimon, J., delivering the opinion of the Court, in commenting on the case of The State v. Wray, 72 N. C., 253, relied on by counsel for defendant, said that case “ went to the extreme limit of the power of interpretation and much stress, in State v. Wray,. was laid upon the fact that the sale was not only upon the prescription of a physician, but was made by a druggist, whose business it was to sell medicine upon prescriptions, and though in conflict with a dictum in State v. Wool, 86 N. C., 708, this Court will not go, by construction or interpreta *683 tion, beyond the ruling in State v. Wray. To. do so would tend to impair the force of the statute, weaken its restraining power, and often to defeat the legislative will, by rendering evasions and violations ef the law easy. It is not pretended that defendant kept whiskey for sale as a medicine, as druggists do, and for which they are required to pay a license. Tax Acts of 1887, ch. 135, § 21. This disposes of the other exceptions.

We think it proper to call attention to the omission in the second and third counts of the indictment to negative the facts that the spirits sold were of the defendant’s own manufacture, and sold at the place of manufacture, or the product of his own farm, as was properly done in State v. Whissenhunt, 98 N. C., 682, and which should be done. State v. Stamey, 71 N. C., 202; State v. Miller, 7 Ired., 275; State v. Loftin, 2 D. & B., 31; State v. Hazell, 100 N. C., 471; State v. Sutton, Ibid., 474.

This objection does not apply to the first count, which is-good, and the verdict being a general one, it is sufficient if any one of the counts is good.

There is no error. Affirmed.