
    
      The State vs. Silas Anderson.
    
    In describing third persons in an indictment, certainty to a common intent is all that is required; and if such persons are described by the initials of their Christian names, the indictment is, on its face, sufficiently certain. '
    An indictment for retailing is not bad, on the ground of duplicity or misjoinder, because various acts of retailing to different persons, are grouped together in one count, as constituting a single offence; and if the proof shews a retailing to either of the persons named, the defendant may be convicted.
    an indictment for retailing, the day alleged is not material, and any day before the finding of the bill may be proved.
    
      Before Wardlaw, J. at Abbeville, Spring Term, 1846.
    The report of his Honor, the presiding Judge, is as follows :
    “ The defendant was indicted for retailing spirituous liquors without license.
    The indictment charged the acts of retailing to have been committed on the third day of February, 1845. One count alleging a sale to A. B. Arnold ; and another, a sale to A. B. Arnold, F. P. Robinson, Henry Power, and certain other persons.
    Before evidence was offered, the defendant moved to quash the indictment, for uncertainty in the description of the third persons mentioned therein — contending that A. B. Arnold should have been styled Alexander B. Arnold, and F. P. Robinson, Francis P. Robinson, if these were the persons meant.
    I held that if by proof it should appear that the individuals meant were known by the names which had been used in the description, that was sufficient certainty. This did fully appear, and I overruled the motion.
    Some evidence had been offered as to retailing on the first Tuesday of February, 1845 ; and then a question was propounded, as to retailing on the day preceding. Objection was made, and I admitted the testimony, holding that time was not material in this offence, more than in others.
    I charged the jury, that if the evidence showed that the defendant had retailéd without license to either of the individuals named in the indictment, at any time within six months next preceding the commencement oí the prosecution, they might find him guilty.
    The evidence went to show retailing, carried on openly, by persons asking for spirituous liquors, and drinking in the house of defendant — then' laying money down on the table, and going off without seeing who took it. Generally the wife of the defendant answered the calls for liquor; sometimes he was in the house, and sometimes out. I left j$fto the jury to inquire whether, from the circumstances, they were satisfied that the violation of the law was done according to the defendant’s contrivance, or with his knowledge and sanction — saying, that if satisfied of either, they might find him guilty.”
    The defendant appealed, and now renewed his motion to quash the indictment, on the ground of uncertainty in the description of the persons to whom the act of retailing is charged to have been made.
    And he also moved in arrest of judgment on the same ground.
    
      And for a new trial,
    
    1st. Because his Honor charged the jury that proof of any single act of retailing by the defendant, to any one of the persons named in the indictment, at any time within six months immediately preceding the finding the bill of indictment, was sufficient to convict the defendant; and permitted evidence to go to the jury of any act of retailing to the persons named in the indictment, within that time.
    2d. Because his Honor charged, that from the sale of spirituous liquors in the house of defendant — though without any proof of his presence or knowledge — the jury might infer that the sale was made by his sanction and authority, and was sufficient to warrant conviction.
    3d. Because the verdict is contrary to law, and without evidence.
    
      Wilson, for the motion.
    
      Whitner, Solicitor, contra.
   Curia, per

Ward law, J.

Where the person to whom an act of unlawful retailing is done, cannot be ascertained, proper certainty in the indictment might be attained by a statement of the exact time, the place, occasion, witnesses present, and other identifying circumstances; but in this case, the usual course has been pursued of stating the persons retailed to, and without this statement there is no sufficient specification of the offence charged. The same ceMiinty in the description of these persons was then essential, which is ordinarily required as to third persons, who are necessarily mentioned in an indictment — that is, certainty to a common intent, or convenient certainty. The names of such third persons are not required to be stated with greater exactness than the name of a defendant; indeed not with so much, for J. S. only, will serve as to a third person, although there be several persons of that name'— and some distinguishing addition might be requisite as to the name of the defendant in like circumstances. Bac. Abr. Indictment, G. 2. Where a third person is necessarily mentioned, and is described only by a name, any material error in the name is, however, more important than an error in the name of the defendant; the latter can be objected to only by plea in abatement, whilst the former may be a ground for acquittal on the trial, if there be a variance between the proof and the allegation, or if the error be manifest on the face of the indictment (as if a blank be left for either the Christian name or the surname) judgment may be arrested or the indictment be quashed.

A third person may, however, be described by any particulars which furnish sufficient identification : and if, instead of a true name, a well known nickname to , which the person answers, an acquired name, or an addition by which such person is usually known, be used, it will be sufficient. Thus, John, parish-priest of D., was enough without the surname ; Dyer, 285; and Yictory, Baroness Turkheim, by which appellation the person injured had acted and was known, was held good, though her real name was Selina Yictoire; 2 Leach, 1005. In this case, before evidence offered, a judge wholly ignorant of the persons mentioned in the indictment, could not have known that the letters which were said to be initials, were not the names of baptism: and when the evidence was heard, it appeared that, although these letters were only initials of the true Christian names, yet that by these letters the persons designated, were called and known — that they wrote these letters for names, answered to them, and were distinguished by them. Under these circumstances, and in the general use of initials for names which prevails, it would be straining for the relief of the accused, to say that he must be presumed incapable of knowing the persons mentioned by the description which pointed them out without doubt to every body else.

Retailing may be complete by one act, or it may consist of a succession of acts. In this indictment various acts of retailing to different persons are grouped together in one count as constituting a single offence. In this there is no duplicity or misjoinder, but rather a favor to the defendant in enumerating, as aggravations or characteristic repetitions of the principal act, other acts, each of which might have been alleged as a separate offence. The State may, thereby, after acquittal or conviction, be barred from proving, upon another indictment, any acts of retailing to any of the persons named prior to the commencement of this prosecution : but no necessity thence arose of proving the retailing to more than one of these persons. One act proved of those alleged, became the principal, — others, if proved, served to aggravate or characterize that.

“It is invariably sufficient to prove so much of the indictment, as shews that the defendant has committed a substantive crime therein specified.” 2 Camp. R. 585. In cases for retailing, as in almost every other prosecution, instead of the day alleged, any day before the finding of the bill may be proved. Time may be made part of the description of an offence; but where the description is sufficient, independent of time, the act charged is identified by the proof of other sufficient particulars, although the time specified be wholly departed from.

The evidence was properly left to the jury, and they seem to have taken their common sense with them into the jury box.

The motion is dismissed.

Richardson, O’Neall, Evans and Frost, JJ. concurred.

Butler, J. absent.  