This is an indictment for selling liquor in Greensboro contrary to the provisions of the act creating a “dispensary” in that town. Acts 1899, chap'. 254. The defendant frankly and properly abandoned here the exceptions upon which the appeal has come up, conceding that they had been settled by the decision in Garsed v. Greensboro■, at this term, which sustained the constitutionality of the act.
The sole point now raised is a motion in arrest of judgment, made for the first time in this Court (probably an afterthought), on the ground that the indictment does not aver that the dispensary was in operation upon November Y, 1899, when the offense charged was committed.
The act -was ratified on February 24, 1899. Section 1 thereof makes the sale of spirituous liquor, otherwise than is therein provided, a misdemeanor; and sec. 3 provides that the dispensary board shall establish the dispensary “on the
In the last-named case, HeNdersoN, 0. J., draws a clear ■distinction between a proviso which withdraws a case from the operation of a statute, which is a matter of defense and need not be neg-atived in the indictment, and a condition upon the existence of which the statute depends, which must be •averred. It has since been, approved, among other instances, In State v. Davis, 109 N. C., 780, and State v. Melton, 120 N. C., 591.
The indictment charges that tire defendant “on. the 7th of November, 1899, at and in the county of Guilford, and in the city of Greensboro; unlawfully and wilfully did sell and retail to James B. Taylor spirituous liquor, the said E. G. Newcomb not then and there being manager’ for, or agent or servant of, the dispensary board for the city of Greensboro,
Tbe motion in arrest admits the truth of these allegations, and indeed, it is determined by the verdict; and as the defendant seeks by this motion to- withdraw himself from liability to the statute, contrary to whose provisions it is both admitted and found that he made the sale, it was incumbent upon him to prove such fact in his defense. State v. Ballard, 6 N. C., 186.
This is not like State v. Chambers, 93 N. C., 600, chiefly relied on by the defendant. That was not a case where the act was to go into effect on a day named, subject to be suspended if something was not done, which is this case, but the act was not to go into effect at all until upon a vote of the people it was affirmed and made a law. Of course, in the latter case, it must be both averred and proved that the vote, which was essential to the validity of the act, was in favor of making it a valid statute. Here, the act is positive, and goes into effect on the date therein specified, with a provision withdrawing the selling of liquor from prosecution! thereunder “until said dispensary is open” — thus malting the defeasance a matter of defense, for unless the defeasance is shoAvn the statute is in force from July 1. It is no more necessary to aver in the indictment that the sale was after the opening of the dispensary than it would be to aver that any other act, made criminal by statute, took place after the statute was passed. State v. Fleming, 107 N. C., 905. If the occurrence was before the time at which such act became criminal, that is a matter of defense arising upon the evidence. State v. Ballard, supra. If it were necessary to put in an indictment, now, a negative averment that this sale was not before the dispensary opened, the same averment wordd
The other cases cited by the defendant are all cases in which the exception is named in the same clause' which created the offense, and it is not negatived in the indictment, and therefore upon its face the offense described in the act is not charged. Indeed, this was also the case in State v. Weaver, supra, where it is said, “The indictment does not sufficiently charge an offense under the statute,” which “provides that in a contingency specified in it, depending upon a popular vote to be taken as therein directed, it shall be unlawful to sell spirituous liquors, etc.hence in the face of the indictment,, it. not appearing that the contingency dehors upon which the statute was to have validity had occurred, proof of sale did not prove its illegality. Here, the statute being valid, any fact dehors which would withdraw the defendant from its. operation, is a matter of defense*.
The sale is alleged on November Y, 1899, and the motion in arrest of judgment admits the fact — which, besides, wa= not controverted on the trial. There can be, in fact, no injustice done the defendant, for there is. an. express admission in the record by him that the dispensary was opened in the city of Greensboro tinder said Act on July 1, 1899, and has been in operation ever since.
If the judgment could, under the settled rules of criminal procedure, be arrested, it would therefore be a vain thing, and of no benefit to the defendant. Though this, consideration should not avail to defeat the defendant of any legal right, if such he had, to have the judgment arrested, still, it shows the wisdom of the rule'that such matters are defenses to be set up and proved by the defendant who seeks to withdraw
Affirmed.