"The Jurors for the state, upon their oaths present, that John Brown, late of the County of Camden, shopkeeper, on 1 February, 1817, and continually thereafter up to the time of taking this inquisition at Camden aforesaid, was, and yet is, a common (225) Sabbath-breaker and prophaner of the Lord's day, commonly called Sunday; and that the said John Brown, on the day aforesaid, being Lord's day, and on divers other days and times, as well before as since, being Lord's day, did then and there keep and maintain a certain open shop, and on the days and times aforesaid, there sold and exposed to sale divers goods, wares and spirituous liquors, to negroes and others, to the great damage of the good citizens of this state, and against the peace and dignity of the state."
The Defendant submitted; but the Court entertaining a doubt whether the facts set forth in the indictment constituted an indictable offence as therein set forth, sent the case to this Court. The indictment charges that the Defendant is a common Sabbath breaker and prophaner of the Lord's day. If it had stopped here, it would certainly have been insufficient, as it would not shew how or in what manner he was a common Sababth [Sabbath]-breaker and prophaner of the Lord's day. The Court upon an inspection of the record, must be able to perceive the alleged criminal act: for an indictment, as was once well observed from this bench by Judge Lowrie, is a compound of law and fact — the latter part of the indictment charges that the Defendant kept an open shop and sold divers goods, wares and spirituous liquors to negroes and others on the Sabbath. This offence, as charged, is not punishable by indictment; for if the act can be intended to be lawful, it shall be so presumed, unless it be charged to be done under circumstances which render it criminal, and be so found by a jury. For aught that appears to the contrary, this sale might have been to the lame or weary traveler, or to others to whom it was a merit to sell instead of a crime; and nothing shall be intended against a Defendant. And if this were the Sabbath-breaking spoken of in the foregoing part of the indictment, taking the whole together, the Defendant well might have done all charged against him, and yet have committed no crime; and this may have been (226) the case, we are bound to presume it; at least not to presume to the contrary — The judgment must be arrested.
Cited: S. v. Gallimore, 24 N.C. 377; S. v. Jones, 31 N.C. 41. *Page 174