State v. . Smiley

7 S.E. 904, 101 N.C. 709

• Court: Supreme Court of North Carolina
• Decided: September 5, 1888
• Status: Published

Opinion

Davis, J.

(after stating the case.) That the repeal of a statute pending a prosecution for an offence created by it puts an end to the prosecution, is too well settled to need the citation of authority; but whether there be a difference between a repeal by legislative enactment and an election under the local option law reversing a former election by which the s^le of spirituous, vinous or malt liquors was made unlawful, as insisted upon by tjie Attorney General on the one side and controverted by counsel for the defendant on the other, it is unnecessary for us to decide, as it is clear that the law which forbids the retailing of spirituous liquors without license was not repealed, suspended, or in any way affected by the local option law, except to prohibit the Commissioners of the county from granting license to retail spirituous liquors at all to any person within a locality in which there has been a majorty vote for “ no license.” Whether local option prevails or not, it is alike unlawful to retail without license, and the provisions of chapter 32 of The Code, as amended by chapter 215 of the Acts of 1887, so far from being in conflict with § 1076 of The Code, which prohibits the sale of “ spirituous liquors by small measure” without license, are in harmony with that section, and the verdict being general, if either count be good, the judgment will not be arrested. State v. Miller, 7 Ired., 275; State v. Williams, 9 Ired., 140; State v. McCauless, 9 Ired , 375; State v. Beatty, Phil., 52.

There is no error. Affirmed.