State v. . Sowers ( 1892 )

Burwell, J.:

This is an -indictment against the defendant for selling spirituous liquor within two miles of a public school-house in Davidson County, contrary to the provisions of chapter 415 of the Laws of 1891.

The jury found a special verdict, as follows: “The jury find as a fact that Robert A. Sowers, Sr., since the first day of April, 1891, and 'prior to the finding of this bill, sold spirituous and intoxicating liquors by the quantity less than a gallon, to-wit, by the half-gallon, to J. A. Leonard, within the distance of two miles of Leonard’s school-house in Lexington township, Davidson County, the same being a public school-house where public schools are taught in said county.”

Upon the facts found in the special verdict, the defendant was adjudged to be guilty. There was judgment against him, and he appealed.

The act referred to (Laws of 1891, ch. 415, sec. 2), provides that it shall be unlawful for any person to erect any stand or place of business for the purpose of selling or offering for sale" any spirituous liquors within two miles of any church in this State; and by a proviso contained in section 4, it is declared that the act “shall onty apply to churches” in the certain counties named, and “to public school-houses and other institutions of learning in Davidson County.” It is unnecessary to consider what effect should be given to this proviso, for the special verdict does not find that the defendant has committed the act made unlawful by section 2, to-wit, erecting a stand or place of business for the purpose of selling or offering for sale spirituous liquor; and it follows that, upon the verdict, the defendant should have been adjudged not guilty.

There is .error.' The cause will'be remanded to be proceeded with according to law. Error.