133 N.C. 709 | N.C. | 1903
Tbe defendant was indicted jointly with one Sides for selling spirituous liquor without license. Tbe indictment set forth three counts. The first count charges a sale by said Sides and tbe defendant, “by the small measure, viz., by a measure less than one quart, to-wit, three pints/ alleging further that tbe said Sides bad no license to retail. Tbe second count charges a sale by Sides and tbe 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. Tbe third count charges a sale by said Sides and tbe defendant of one pint of spirituous liquor, a local election duly authorized by statute having been held, at which total prohibition of tbe sale of spirituous liquor in said county bad been adopted.
Tbe evidence was that the party named as purchaser in the indictment (one Tucker) had bought three pints of whiskey of said Sides, and bad then and there paid Holder the price of the whiskey. There was no evidence of co-partnership 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
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. State v. Toole, 106 N. C., 736, where the authorities to that effect, which are numerous, are collected. It has since been often cited and approved, State v. Carter, 113 N. C., 639; State v. Edwards, Ibid., 654; State v. Lee, 114 N. C., 844; State v. Perry, 122 N. C., 1020; State v. Railroad, 125 N. C., 670; State v. Peak, 130 N. C., 712, and in still other cases.
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. State v. Lytle, 117 N. C., 799; State v. Woodard, 123 N. C., 710; The Code, sec. 1194. So, if the statute of limitations was relied on, it should have been specifically brought to the attention of the Cburt by plea or a request to charge, the object being in both cases that if the offense was in fact committed in the county and within two years, the Judge should, upon either being, put in issue, allow evidence to be introduced that there should not- be a defect in the administration of justice by an inadvertent failure to prove venue or
The defendant moved in 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 (State v. Kittelle, 110 N. C., 564, 28 Am. St. Rep., 698, 15 L. R. A., 694), and that Sides would be none the less guilty because the money was paid to Holder (State v. Best, 108 N. C., 147), or any other device
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 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 Ctourts 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 a measure less than a quart, to-wit, three pints.” 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. State v. Poteat, 86 N. C., 612, presented an entirely different state of facts, and discusses the distinction.
The third count seems unobjectionable in form, but the State admits that there was no evidence to support that count (State v. Chambers, 93 N. C., 604), and that a prayer to so instruct the jury was asked in apt time and refused, and for this, the other counts being defective, there must be a
New trial.