State v. . Downs

The indictment charges the sale of spirituous liquor within two miles of Bethel Methodist Church in Macon County. The statute, Laws 1881, ch. 234, and the verdict both describe the church simply as Bethel Church in Macon County. There is nothing to (1066) indicate that the church is not one and the same. The added word "Methodist" in the indictment is simply harmless surplusage or immaterial variance. S. v. Eaves, 106 N.C. 752. There is nothing tending to show that there was any ambiguity or more than one Bethel Church in the county as in S. v. Partlow, 91 N.C. 550, or that the defendants were in any wise prejudiced in their defense or misled as to the church which was meant. It was not necessary that the indictment should specify the kind of spirituous liquor sold. That was a matter of evidence. S. v. Packer, 80 N.C. 439.

Nor was it necessary to refer to the statute in the indictment, as it was a public local statute. S. v. Wallace, 94 N.C. 827. Neither was it any defense that before making sale of the liquor the defendants on inquiry of counsel were told that the church was not incorporated and that it would be no violation of the law for the defendants to sell within two miles thereof at the place of manufacture in quantities not less than a gallon. "Ignorance of the law excuses no one," and the vicarious ignorance of counsel has no greater value. S. v. Boyett, 32 N.C. 336. The law does not encourage ignorance in either. S. v. Dickens, 2 N.C. 406. If ignorance of counsel would excuse violations of the criminal law, the more ignorant counsel could manage to be, the more valuable and sought for, in many cases, would be his advice.

The criminal intent is not the intent to violate the law but the intentional doing the act which is a violation of law. It is only when the criminality depends not merely upon the act but upon the motive or intent with which it is done that the intent becomes material. S. v.McBrayer, 98 N.C. 619; S. v. Dalton, 101 N.C. 680; S. v.Wray, 72 N.C. 253, pressed by defendants' counsel, applies only (1067) to parties (as druggists) authorized to sell for medical purposes and who therefore cannot be found guilty for merely selling, but only if they sell not in good faith for such purposes.

The license from the United States Government was only a protection from prosecution by its authority. It did not protect the defendants from prosecution in the State courts for selling contrary to State laws. S. v.Stevens, 114 N.C. 873.

When there is an exception in the same clause which creates the offense it should be negatived in the indictment. If the exception is in another clause this is not necessary, but it is matter to be shown in defense. S. v. Norman, 13 N.C. 222; S. v. Tomlinson, 77 N.C. 528; S. v.Heaton, 81 N.C. 542; S. v. Lanier, 88 N.C. 658; S. v. George, 93 N.C. 567. Here the proviso that the act should not apply to the sale of vinous liquors, is in a separate clause, the ninth, while the provision violated by the defendants is in the second clause. If the liquor sold had been vinous and the defendants had wished to rely upon that fact this was matter of defense, and it was not necessary to anticipate and negative it in the indictment.

No Error.

Cited: S. v. Bynum, 117 N.C. 752; S. v. Snow, ib., 779; S. v. Harris,119 N.C. 813; Epps v. Smith, 121 N.C. 161; S. v. McLean, ib., 595, 601;S. v. R. R., 122 N.C. 1061; S. v. R. R., 125 N.C. 671; S. v. Smith,126 N.C. 1059; S. v. Newcomb, ib., 1106; Norwood v. Lassiter, 132 N.C. 58;S. v. Yoder, ib., 1118; Barber v. Justice, 138 N.C. 21; S. v. Lytle, ib., 740; S. v. Piner, 141 N.C. 762; S. v. Powell, ib., 785; S. v. Simmons,143 N.C. 616; S. v. Hicks, ib., 694; S. v. Hooker, 145 N.C. 584; Rabonv. R. R., 149 N.C. 60; Powers v. R. R., 166 N.C. 602; Allen v.McPherson, 168 N.C. 437; Ham v. Person, 173 N.C. 74; McLean v. Johnson,174 N.C. 346.

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