Jones v. State

Ikying, J., delivered the opinion of the Court. The appellant was convicted and sentenced for a violation of the Act of 1878, chapter 462, known as a local option law for certain.districts of Dorchester County. That law included within its operation Cambridge district, which is district No. 7. The indictment charges the offence to have been committed in Dorchester County, “and election district number seven thereof, in which a majority of the qualified voters thereof cast their ballots against license for the sale of spirituous or fermented liquors with a view to profit in the way of trade.” The defendant filed a special plea which, (without setting out the same totidem verbis), substantially alleges that the Act of 1886, chapter forty-one, changed the penalties prescribed by the Act of 1878, chapter 462, under which the prosecution is taken, which change operated on the election district in which the offence is alleged ; and that by Act of 1880, chapter 456, a large part of district number seven was cut off from it and formed into another district, number 14, asLinkwood District; and that by Act of 1884, chapter 390, a different penalty was fixed for selling liquor in that part of district number seven which was cut off from it and put into another district, “and at ■no time has a majority of the qualified voters of said election district number seven, as it existed at the time of the ■enactment of the Act of 1886, been cast against license,” ■and that “district number seven as it existed and was constituted at the time of the enactment of the Act of 1878, ■and of the only election held thereunder in November, 1878, had passed out of existence at the time of the enactment of the Act of 1886, and the indictment does not specify in what part of the district No. 7, as it existed at the time of the passage of the Act of 1878, said offence was committed.” ²⁵⁸ To this plea demurrer was interposed and sustained “ and then appellant pleaded not guilty, was tried, convicted and sentenced, and he brings the case to us on assignments of error’, which are as follows : 1st. “The defendant insists that the indictment should allege as an ingredient of the offence charged, that a majority of qualified voters of district No. 7 had voted against license to sell spirituous liquors.” 2nd. “That the Act of 1886, chapter 41, in connection with chapter 462, of Acts of 1878, and chapter 456 of' the Acts of 1880, repealed all penalties for the sale of' liquor in district No. 7, and no authority existed in the Court either to find the defendant guilty or pass sentence upon him.” The question presented by the first error assigned is not involved in the plea to which demurrer was interposed,, and it is difficult to see how it would be entertainable here,, except on the theory that, under the demurrer to the plea, the indictment was necessarily brought to the Court for consideration, and had to be passed upon; and if that was-wrong, there was error in overruling it as to the plea,, because it mounted to the first error.

Conceding, without deciding that such is the case, in a case of this kind,, and on assignment of error, the question properly presented to us, an examination of the indictment shows there was no such omission as is alleged. The appellant’s counsel says in bis brief that, by accident, the words “and proclamation thereof made by the clerk” fr,om the conclusion of that assignment of error