Hall v. State , 3 Ga. 18 ( 1847 )

Warner, J.

delivering the opinion of the Court.

The defendant was indicted for a misdemeanor, and was charged in the indictment with keeping an open tippling house on the Sabbath day, in the town of Lanier, in the county of Macon, on the -22d day of March in the-year 1846, and was found guilty. There was a motion in arrest of judgment in the Court below, on several grounds specified in the record, all of which were overruled by the Court; to which the defendant excepted, and now assigns the same for error in this Court.

We have examined the several grounds of error alleged upon the record to the decision of the Court below, but have not been able to discover much merit or force in them.

■ The indictment accuses the defendant of the offence of a [1.] misdemeanor, and then proceeds to specify the particular acts of the defendant which constitute the offence. By the 1st section of the 1st division of the Penal Code,it is declared, “A crime or misdemeanor shall consist in a violation of a public law, in the commission of which there shall be an union, or joint operation, of act and intention, or criminal negligence.” — Prince 620.

• The 6th section of the 10th division of the Penal Code, declares : “ Any person who shall be guilty of keeping open tippling houses on the Sabbath day, or Sabbath night, shall on conviction, be fined, or imprisoned in the common jail, or both, at the discretion of the court.” — Prince 646. To keep open tippling houses on the Sabbath day, is a violation of a public law, and is a misdemeanor, as declared by the first section of the first division of the Code.

The second ground was abandoned on the argument.

The third ground insists, that as the indictment only charges [2.] the keeping open one tippling house, and not aplurality of tippling houses, no offence is charged for which the defendant can be punished — that penal laws must be construed strictly. In the case of United States, vs. Wiltberger, 5 Wheaton’s Rep. 76, Chief Justice Marshall, delivering the opinion of the court, says, “ that although penal laws are to be construed strictly, they are not to ,be,construed so strictly as to defeat the obvious intention of the legislature. The maxim is not to be so applied as to narrow the words, of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in'tbat sense in which the legislature has obviously used them, would comprehend. The intention of the legislature is to be collected from the words they employ.” In o.ur judgment it was manifestly the intention' of the legislature, from the words employed in the Code, to prohibit the keeping open a “ tippling house” on the Sabbath day, as well as “ tippling houses.” In Hassel’s case, 1 Leach Crown Law, it was held under the statute of 2 George II. c. 25, which enacts that it, shall be felony to steal any bank notes, that the offence was complete by stealing one hank note. So we think the defendant, by keeping open one tippling house, on the Sabbath day, violated the sixth section of the tenth division of the Penal Code, and was liable . to be indicted and punished therefor.

[3.] The indictment' alleges the offence to have been committed on the 22d day of March, in the year. 1846; and the fourth objection is, that it does not state the era, or period, from which said date begins. We are of the opinion, it may fairly be presumed to have been in the year of our Lord, 1846, or in the year 1846 of . the Christian era.

The fifth ground was abandoned on the argument in this Court. [4.] The sixth and seventh grounds may be considered together, which insist that the indictment should have charged the defendant with having sold, given, or otherwise disposed of, his liquors or drink, to some person, or that the keeping open the tippling house on the Sabbath day was a common nuisance, or hurtful to individuals, or to the religion or morals of the neighbourhood. .

The offence which the statute contemplates is, the keeping open a tippling house on the Sabbath day. The object of the legislature was to remove all temptation to idle and dissolute persons who might be disposed to congregate at such places, and violate the Sabbath by any improper conduct; to say nothing of the te.mptation which such a practice would hold out to an unlawful traffic with slaves on that day. The law presumes an injury to the public by keeping open the doors of a tippling house on. the Sabbath day, or why prohibit it 1 The offence is complete under the law when it is established that defendant has kept ' open a tippling house on the Sabbath day, without further proof of injury to individuals or the neighbourhood.

The eighth and ninth grounds of error assigned will be [5.] considered together.

It appears from the record that the verdict of the jury was 'written on the indictment, but was not'entered on the minutes of the Court at the term when it was returned. The' indictment was of file in the proper office, and constituted a part of the proceedings of the Court, and we do not think the neglect of the clerk to ■enter it on the minutes, affords a sufficient ground to arrest the judgment. The Court, at the next succeeding term, ordered the verdict to be regularly entered on the minutes of the Court, ñunc pro tunc, as in our judgment it was proper, for it to have done, ■notwithstanding the objections of the counsel for the defendant. Let the judgment of the Court below stand affirmed.

Judgment affirmed.