Opinion
(June Term, 1829.)
An indictment on the acts of 1798 and 1816 (Rev., chs. 501 and 906), prohibiting the retailing of liquor by a measure less than a quart, which charges the retailing to be "by the small measure," is defective; the words "less than a quart" should be superadded to the description of the offence.
The defendant was indicted for retailing spirituous liquors without a license, in the following manner:
Badger, for the State.
No counsel appeared for the defendant.
FROM CUMBERLAND.
The Jurors for, etc., on, etc., present that N. S., of, etc., on etc. and divers other days, etc., in, etc., did retail spirituous liquor by the small measure without having a license according to law, contrary, etc.
After a verdict for the State, his Honor, Judge DANIEL, on the motion of the defendant's counsel, arrested the judgment, because the indictment charged a retailing by the small measure generally, without showing what the measure called small was, or in any manner describing a sale by quantities less than a quart, except by the word small, which his honor thought too indefinite; whereupon Mr. Solicitor Troy, for the State, appealed to this Court.
I think the judge in the Court below was correct in thinking the words of the indictment, describing the offence charged, were too indefinite.
The act of 1798 (Rev., ch. 501), enacts that any person undertaking to sell spiritous [spirituous] liquors by the small measure, or by any other ways or means, where the quantity is less than a quart, shall forfeit 48 shillings, and shall be further liable to presentment or indictment for the same offense.
The act of 1816 (Rev., ch. 906) enacts that if any person shall retail spirituous liquors by the small measure, contrary to the true intent and meaning of that act, without license, etc., he shall be subject to indictment.
(199) Now the word small is a relative term. We cannot decide whether a thing is great or small without comparing it with something else. And when we use the words small measure, we have no distinct idea of their meaning without comparing it with some other measure. In the present case, when the indictment uses the words small measure we do not judicially know its precise import unless we had before us some standard measure to compare it with. If the retailing was charged in the indictment to be by a measure less than a quart, which the act of 1798 declares to be the standard by which a small measure is ascertained, we could understand with legal certainty that the defendant was charged with selling spirituous liquors by a measure prohibited by these acts, and which they declare to be an indictable offense.
PER CURIAM. Affirmed.
Cited: S. v. Gallimore, 24 N.C. 377; S. v. Bradley, 132 N.C. 1061.