The defendant is charged with selling liquor on Sunday in violation of THE CODE, § 1117. There was a verdict of guilty, and the defendant appealed from the judgment pronounced. The defendant, indicted under the act of January 11th, 1877 (THE CODE, § 1117), on his trial before the jury, was found guilty of the offense of selling intoxicating liquors without the prescription of a physician and not for medical purposes, on the 10th day of June, 1883, the said day being Sunday as charged in the bill. Upon the trial it was proved that the defendant, a licensed retailer of spirituous liquors, in the city of Wilmington, sold two drinks of whiskey to the witness, one for himself and one for his companion, on a Sunday either in the month of June or July, 1883, but on which Sunday in those months the witness was unable to say.
The defendant's counsel asked that an instruction be given to the jury that the verdict should be for the defendant, because the state had failed to prove the particular Sunday specified in the bill. *Page 748
The court refused the prayer, and charged the jury that it was sufficient for the state to show that the retailing was on Sunday in one or other of the months mentioned by the witness. To this direction, as well as to the refusal to give that asked, the defendant's counsel excepted, and judgment being rendered on the verdict, the defendant appealed.
The statute is general in its terms, and applies to licensed retailers as well as to others (State v. Wool, 86 N.C. 708), and the appeal presents the single question whether the state is required to prove, not only that the selling was on a Sunday, but that it was on the day of the month mentioned in the bill.
The proposition is so utterly at variance with the well settled rules of criminal pleading and the uniform course of adjudications, that we are at a loss to find any plausible ground upon which the exceptions can be placed. It is due, however, to the accused that we consider the merits of his appeal.
An eminent author on criminal law lays down the principle governing in such cases in these words:
"The statement of the day of the month in an indictment for an offense on Sunday, though the doing of the act on that day is the gist of the offense, is not more material than in other cases; and hence if the indictment charge the offense to have been committee on Sunday, though it names the day of the month which does not fall on Sunday, it is good." 1 Whar. C. L., §§ 263 and 275. To the same effect, 1 Bishop C. L., § 250.
It is expressly so ruled in the following cases: State v. Frazier,5 Mo., 536; State v. Eskridge, 1 Swan (Tenn.), 413; Megonon v. Commonwealth, 2 Metc. (Ky.), 3; People v. Ball, 42 Barb. (N. Y.), 324.
In entire accord with these adjudications is our own ruling in State v.Drake, 64 N.C. 589, where the day of the month charged to be the Sabbath day did not in fact fall on the Sabbath.
The court quoted and approved the rule laid down by Mr. WHARTON in the passage which we have quoted. *Page 749
There is no error in the ruling of the court; nor upon inspection do we discover any grounds for arresting the judgment. This will be certified to the court below that the court may proceed to judgment according to the verdict.
No error. Affirmed.