State v. IrvineState v. Irvine
- Reporters:
- , ,
- Before:
- Derick
delivered the opinion of the Court.
Thе presentment in this case was quashed in the Circuit Court of Madison county. It charges “that one Stephen Irvine, late of said county, grocer, on the 26th day of March, 1870, on election day, with force and arms, in the county aforesaid, did then and there, willfully and unlawfully, sell, give, vend and retail, spirituous, vinous and fermented liquors, to one Theodorick Webb, near the eleсtion ground, in the City of Jackson,” &c.
The objections taken to the presentment are:
1. That it is bad, because it charges at leаst two distinct offenses in the same count.
2. That it does not aver that any еlection was held upon “election day.”
The statute provides, “thаt no liquor shop in this State shall be kept open on election days, nor shall any person, on said days, give or sell intoxicating liquors to any person, at or near an election ground:” Acts of 1869-70, p. 24.
*157The object of the law is, to prevent the use of liquor upon, “election day; аnd if given or sold on that day, at or near the election ground, that objеct would be defeated.
In the case of The State v. Jopling, 10 Hum., 419, where the presentment charged in a singlе count, that the overseer neglected to mile mark, and put up рointers at the forks of the road, the Court say: “We see no reason why there should be two presentments [counts] in such a case.”
The presentment was quashed below, and upon appeal in error to this Court, the judgment was reversed, and the cause remanded for further proceedings.
The reasons assigned in that case, why both offenses might be chаrged in the same count, v^ere, that the duties were prescribed by the same Act; were of the same character; and failure to pеrform them was punishable by the same penalty.
The ease in 4 Hum., 25, is not in conflict with the prinсiples settled in this case; but the reason, in that case, why the two cases could not be joined together in the same count, was, that the punishment provided by the statute was different- — in the one case being limited to $5, and in the other to $50.
The offenses of selling and giving away liquor, are crеated by the act of December 9, 1869, and are of the same character, and punishable alike, and both offenses tend to produсe the same evils, which it is the object of the statute to prevent.
On thе other hand, it has been held by this Court, in a case of felony, that where twо distinct offenses *158were charged in the alternative, in the same cоunt, the indictment was bad: 4 Cold., 183.
It may be regarded as the settled law in felony cases, that there may be a joinder, of distinct offenses when they are of the same nature, and admit of the same plea and judgment, as well аs of several offenders in the same indictment; but each distinct offense should be charged in a separate count: 9 Yer., 333; 1 Cold., 175.
Following the case in 10 Hum., we hold that in misdemeanors, when two offenses of the same character are created by the same statute, and are punishablе in the same manner, that they may be joined in the same count of an indiсtment or presentment.
The other objection is, that the presentmеnt does not aver that any election was held upon that day upon which it’ is charged the offense was committed.
The charge in the prеsentment, is in the words of the statute creating the offenses; and we are of opinion that the averment that the defendant sold, &c., on election day, near ‘the election ground, &c., necеssarily imports that an election was on that day held, upon the elеction ground.
It follows that the action of the Court below, in quashing the prеsentment, was erroneous.
Let the judgment be reversed, and the cause remanded for further proceedings.