Opinion
(June Term, 1840.)
The 75th and 77th sections of the 34th chapter of the Revised Statutes, which, after prohibiting the selling of spirituous liquors to slaves, and making the offense indictable and punishable with fine or imprisonment, prescribes that, "If it shall appear on the trial that the defendant is a licensed retailer of spirituous liquors by the small measure, he shall also forfeit his retailer's license, and shall be incapable of taking a new license for the space of two years from and after the date of his conviction," mean that the defendant shall be a retailer at the time of the offense committed, and not at the time of the trial; and the fact of his being such retailer is not to be ascertained on affidavits or otherwise by the court, but must be averred in the indictment and confessed, or found to be true by the verdict of a jury.
THE defendant was convicted in ANSON, on the last circuit, before Bailey, J., on an indictment charging that he unlawfully sold spirituous liquors to a slave named George, the property of Martha Boggan, contrary to the form of the statute in such case made and provided; and it appearing to his Honor, upon the testimony of a witness examined as to that fact, that the defendant was then a licensed retailer of spirituous liquors, it was adjudged by the court that the defendant be fined $1, and that he forfeit his license to retail spirituous liquors, and that he be incapable of taking a license to retail spirituous liquors for two years. From this sentence the defendant appealed to the Supreme Court.
Winston for defendant.
The Attorney-General for the State.
Revised Statutes, ch, 34, (116) sec. 75, respecting crimes and punishments, declares that every person who shall sell to a slave spirituous liquors shall, for each offense, forfeit and pay the sum of $100, to be recovered by warrant before a justice of the peace, and applied one-half to the use of the party suing for the same, the other half to the use of the poor of the county. Section 77 of same chapter enacts that the offenses mentioned in section 75 shall moreover be indictable in the county or Superior courts, and the defendant, on conviction, shall be fined or imprisoned at the discretion of the court; the fine, however, not to exceed $50 or the imprisonment three months; "and if it shall appear on the trial that the defendant is a licensed retailer of spirituous liquors by the small measure, he or she shall also forfeit his or her retailer's license, and shall be incapable of taking a new license for the space of two years from and after the date of his conviction."
The judgment which has been rendered in this case seems, therefore, warranted by the letter of the act referred to; but we are of opinion that the literal sense does not present the true exposition of the intention of the lawmakers. In the first place, supposing that it was competent for the Legislature to make the degree of punishment of an offense depend not on the nature of the offense when committed, but on the quality and condition of the offender at the time of trial; and also to provide that the facts warranting this increased severity of punishment should not be passed on by the regular tribunal, the jury, but ascertained on affidavits or otherwise by the court — it will not be questioned but that such provisions are not in accordance with the general tenor of our usages and laws in criminal prosecutions. According to these, the guilt of an act is fixed when the criminal act is done, and punishment is definitely assigned by law to criminal acts with reference to their guilt. According to these, every material fact warranting the punishment of an offender is to be charged against him, and, if not admitted to be true, (117) must be found true by the county before a court can award that punishment. Such a departure from the ordinary system of criminal jurisprudence is not lightly to be intended.
But the object of the Legislature in making this special enactment would be, in a great measure, defeated if the literal interpretation were to prevail. Licenses are granted annually. If one who sold spirits to a slave were not liable to the increased punishment unless he had a license in force at the time of the trial, a little delay would put it in the power of every offender to avoid this punishment.
The sound construction seems to us to be that the Legislature intended to make the criminal act more penal in the case of a retailer than of an ordinary individual. When the offense was committed by a retailer, then, in addition to find and imprisonment, he was to forfeit his license (if yet unexpired), and at all events to be rendered incapable for two years thereafter of obtaining another license. That the offense has been committed under these circumstances of aggravation must indeed "appear on the trial," but it is to appear in the ordinary way, by an averment thereof in the indictment, and a confession or finding that such averment is true. So much, therefore, of the judgment in this case as is in addition to the fine imposed on the defendant seems to us erroneous.
The Superior Court of Anson will pronounce sentence on the defendant in conformity herewith.
PER CURIAM. Judgment reformed.
(118)