State v. Strauss, 77 N.C. 500 (1877)

June 1877 · Supreme Court of North Carolina
77 N.C. 500
STATE v. JOHN H. STRAUSS

STATE v. JOHN H. STRAUSS.

City Or dinanee — Criminal Prosecution — Defeet in Indictment.

Where the defendant is prosecuted under a City ordinance which provides that any person “refusing or neglecting to pay license tax, &c., for the space of five days, &c., shall be subject to criminal prosecution,” the indictment is fatally defective if it fails to allege that the defendant neglected or refused to pay the tax, &c., for the space of five days.

Criminal Action tried at January Special Term, 1877, of New Hanover Superior Court, before McKoy, J.

This was an appeal from the judgment of the Mayor of the City of Wilmington -who imposed a fine of $25 on the defendant for failing to obtain a license as liquor dealer, as provided by a City ordinance. Upon a special verdict in the Court below, His Honor adjudged the defendant guilty. Judgment. Appeal by defendant.

Attorney General and Mr. D. L. Bussell, for the State. Messrs. A. T. $ J. London, for the defendant.

Eaircloth, J.

The defendant was indicted for engaging in the business of a liquor dealer in the City of Wilmington without having obtained a license to so do, in violation of an ordinance of the City; to-wit, § 8, which provides “that *501any person refusing or neglecting to pay the license tax assessed against them for the privilege of doing business, for the space of five days, shall be subject to criminal prosecution, &c.”

Upon a special verdict the defendant was adjudged guilty. In this Court the objection was taken that the indictment does not allege that the defendant had neglected or refused to pay the tax and obtain a license for the space of five days.

On inspection we find this to be true. This is a fatal defect and the prisoner ought to have been acquitted. This allegation does not appear either in the bill,- the special verdict, or in the statement of the case. Nothing can be added to a special verdict by inference. If the bill is defective or any essential fact be omitted from the special verdict, the prisoner is entitled to an acquittal.

There is error.

Pee. Curiam. Judgment arrested.