State v. . Strauss

77 N.C. 500

• Court: Supreme Court of North Carolina
• Decided: June 5, 1877
• Status: Published

Opinion

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 any 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.