State v. . Sutton ( 1888 )

The facts appear in the opinion. The indictment charges that the defendant "to one W. F. Morton, spirituous liquors by the measure less than a gallon, to wit, by the quart, unlawfully did sell . . . not having then and there a license to sell spirituous liquors by the measure aforesaid, contrary," etc.

The jury returned the following special verdict: "That about the middle of the summer of 1886 the defendant sold spirituous liquors by the quart, and prior to this time by the pint and quart, within two years prior to the beginning of this inquisition, to W. F. Morton; that the defendant at the time of such sales was agent of Dan Sutton, a distiller of spirituous liquors, whose distillery was in operation 300 yards from the place of selling, a public road intervening; that the distillery of the said Sutton was situated on an acre of land, leased by the said Dan Sutton for the purpose, and had been run off and the boundaries ascertained by a survey, and that the liquor sold was manufactured at said distillery; that the land on which the grocery, where the said sales were made 300 yards down the road, was a separate tract of land, but adjoining, belonging to the defendant, but mortgaged for five years to Dan Sutton, who was in possession, though not paying nor under any agreement to pay rent."

The jury find the defendant guilty or not guilty, as the court may be of opinion upon the facts.

"Upon this special verdict his Honor adjudges the defendant guilty. Defendant moves in arrest of judgment for that the act under which the defendant was indicted has been repealed. Motion allowed. Judgment suspended (arrested)." Appeal by the State.

The repealing section in the act of 1887 (ch. 135, sec. 45) relied on by the defendant relates to and repeals the laws "imposing taxes" on the subjects "revised," and does not relate to the penalties imposed for a violation of the revenue laws. They are not embraced in (476) the language of the repealing section, and a repeal by implication is not favored. Jones v. Ins. Co., 88 N.C. 499. The proviso in the repealing section shows the intended scope and purpose of it.

But if it were otherwise, simultaneous with the repealing section, the penalties for a violation of the provisions of the revenue laws are enacted in substantially the language of the act of 1885, to make these apply to the provisions of the act of 1887. Even if it were a repeal of the act of 1885, as insisted by the defendant, "if the Legislature enacts a law in the terms of a former one, and at the same time repeals the former, this amounts to a reaffirmance of the former law, which it does not in legal contemplation repeal. The provision is continued without any intermission." Bishop on Statutory Crimes, sec. 181.

It will be observed that the defendant is indicted for selling spirituous liquors "by the measure less than a gallon, to wit, by thequart." The act of 1885, ch. 175, sec. 34, prohibits the sale of liquors, etc., in "quantities less than a quart" without a license, and the proviso in reference to a sale at the place of manufacture by the distiller, or the products of one's own farm, does not apply to sales of less than a quart, but does apply to sales in quantities of one quart or more.

The act of 1887, ch. 135, sec. 31, excludes from the benefits of the proviso sales "in quantities of one quart or less." The indictment seems to have been drawn under the act of 1887, but, by the finding of the jury, the sale was before the passage of that act, "about the middle of the summer of 1886," and whether drawn under the one or the other it is fatally defective for the reasons stated in S. v. Hazell, ante, 471.

Upon this ground there would have been no error in arresting the judgment.

Affirmed.

Cited: S. v. Dalton, 101 N.C. 682, 683; S. v. Deaton, ibid., 730; S.v. Massey, 103 N.C. 359, 361; S. v. Williams, 117 N.C. 754; S. v. R.R., 125 N.C. 673.

(477)