Hoover v. State

Alvey, J., delivered the opinion of the Court. The traverser in this case was indicted for unlawfully selling a quantity of spirituous liquor, not less than a pint, to a particular person named, and the offence is charged to have been committed on the 4th day of July, 1879, “ the same day, in the year aforesaid, being the Sabbath day, commonly called Sunday.” There are three counts in the indictment, and in each of them the offence is charged in very much the same terms. There was a demurrer to the indictment, and that was overruled; after which the party was tried upon plea of not guilty, and was convicted and fined. He now brings the case here upon errors assigned in overruling the demurrer to the indictment.

As we gather from the errors assigned by the traverser, the supposed error of the Court below, in overruling the demurrer, consisted in holding that the indictment was not fatally defective, because of the averment that the 4th day of July of the year 1879, on which the sale of the liquor is alleged to have been made, was Sunday, whereas in fact, as the Court was judicially bound to know, the 4th day of July of that year was Friday. It is certainly the duty of the Court to notice the days of the week on which particular days of the month fall. ⁵⁸⁶ Hoyle vs. Cornwallis, 1 Strange, 387; Kilgour vs. Miles, 6 G. & J., 268 . But the indictment in this case was found under the Code, Art. 30, sec. 179, as enacted by the