Harris v. State ( 1879 )

Cooper, J.,

delivered the opinion of the court.

The indictment under which the plaintiff in error was convicted avers that he did unlawfully sell spirituous and alcoholic liquors without first appearing before the clerk of the county court of the county in which such liquors were proposed to be sold, and taking and subscribing an oath not to adulterate or suffer to be adulterated any liquors sold or offered to be sold by hint, and without giving bond in the sum of five hundred dollars, with good and sufficient security, for the payment of all costs arising from prosecutions for violations of the provisions of the act of the General Assembly, ch. 81, secs. 1, 2, 3 and 4, passed March 16, 1850, contrary to the form of the statute in such cases made and provided, etc.

The act of 1850, ch. 81, was not passed on the 16th of March, and is, moreover, a private act. It is the act of 1860, ch. 81, which, by its first three sections, makes the adulteration of spirituous and vinous liquors by poisonous ingredients, or the selling thereof, a felony, and by sec. 4 makes it unlawful to sell, or offer to sell, any spirituous or alcoholic liquors until oath has been taken and bond given as set out in the indictment.

By sec. 10 the violation of the provisions of sec. 4 is made a misdemeanor, punishable by a prescribed fine. The plaintiff in error moved in the court below that the judgment be arrested, which motion was overruled. The error now relied on is, that the State is bound by the recitals of the act in the indictment, and there being no such act that no offense is charged, and the judgment should have been arrested.

The indictment is for selling liquor without taking the oath and giving the bond specified. The charge would constitute a misdemeanor under the act of 1860, and no offense at all under the act of 1850, or any other act. By the Code, sec. 5118, "neither presump-, tions of1 law, nor matters of which judicial notice is taken, need be stated in the indictment.” The court takes judicial notice of all general laws, and therefore the indictment before us would have been sufficient if it had charged that the defendant sold spirituous liquors without first having taken the oath and given the bond prescribed, contrary to the form of the statute in such cases made and provided. And it is not easy to see how a recital of the substance of the statute in relation to the bond can change the result, even if there be a mistake as to the date of the-statute.

The argument, pressed with earnestness and ability,, is, that although unnecessary, the recitals of the substance and date of the act become material by being, embodied in the indictment, and must be established, by the proof.

The general rule has been in felony cases, that if the facts constituting the offense are set out in the-indictment with more particularity than necessary, they must be proven. The test of this rule, as stated by this court, is whether a conviction or acquital could be-relied on as a good plea to another indictment, omitting the unnecessary averments. And the court add,. “All variances not inconsistent with the validity of both proceedings may be shown to be merely technical.” Hite v. State, 9 Yer., 358, 378. Accordingly, when an indictment for selling liquor on Sunday stated the date of the offense on a day of the month which was not Sunday, the averment was treated as surplusage. State v. Eskridge, 1 Swan, 413. Eo doubt everything which goes to constitute the offense charged, even if it purport to be the words of a statute, must be sustained, for otherwise the defendant might be charged with one offense and convicted of another. But when the offense is correctly set forth according to the statute, and the statute itself otherwise identified, a variance between the date of the act as charged and its real date, may well be considered as technical. A conviction or acquital would certainly be conclusive in defense of any other indictment for the same offense. By the Code, sec. 5117, only such degree of certainty is required in an indictment as will enable the court to pronounce judgment upon a conviction according to the right of the case. Less strictness, it has always been held in this State, is-required in indictments for misdemeanors than for felonies. A mere clerical error in the date of a statute, where it is obvious the defendant could not be prejudiced thereby ought not to vitiate an indictment-for a misdemeanor.

It might be different if the statute referred to in the indictment did in fact create a substantive offense,, for in that case there would be an offense charged, although not the one intended. But When the act mentioned creates no offense whatever, there is not the least danger of prejudicing the defendant by treating the error as technical and clerical.

Affirm. the judgment.