
    
      The State vs. Jacob Meyer.
    
    1. Por a violation of tKe 2d section of the Act of 1837, (8 Stat. at Large, 596,) an indictment may be sustained.
    2. If a statute prohibit an act to be done, under a penalty certain, though no mention be made of indictment, the party may be indicted; but if another mode of recovery be prescribed, that must be pursued.
    3.' Where an indictment, framed under the 2d section of the Act of 1837, which provides that “ it shall not be lawful for any owner or occupier of any grocery store or retail shop within the limits of Charleston Neck, &c., to keep Open the said stores, shops, or places, or to trade, traffic or barter therein, with negroes or persons of color, at any time on the Sabbath day, &c.,” which charged in one count that the defendant, being the owner and occupier of such shop, “ did keep open the same on the Sabbath day, and did trade, traffic, and barter therein with negroes and persons of color,” it was held that the count did not include two distinct offences, but two specifications of the same offence.
    
      Before Earle, J., Charleston, May Term, 1841.
    This was an indictment under the second section of the Act of 1837, for keeping open on the Sabbath day, a grocery store and retail shop, for selling liquors on Charleston Neck, and trading with negroes therein.
    The proof was, that the defendant keeps, and has long kept, a grocery store, where he has been in the habit of retailing liquors, at the corner of Boundary and Cumming streets. It was visited on a Sabbath day in July, 1840, by the witness, who deposed that the outside doors, opening into both streets, were closed. A gate from Boundary-street opens into the yard beside the house, and immediately within the gate a back door opens into the shop. The witness saw a negro coming out of the gate with a parcel in his hand; arrested him and carried him back , found the inner or back door open, which could be perceived from the street. On taking the negro into the shop where the defendant was, opened the parcel, and found a pair of suspenders which the negro had bought there. There was no proof that the defendant had actually sold liquor there during that month ; but a witness said he had been in the habit of selling liquor ever since he knew him.
    All the exceptions now taken as grounds of appeal, were urged on the trial, and overruled. In regard to the ninth ground, it may be proper to add, that it seemed immaterial how negroes, coming to traffic, gained admission, whether at a front door or back door, provided there was a place of entrance kept open for that purpose. Whether the gate and back door were kept open for that purpose, was submitted to the j ury. Verdict, guilty.
    A motion was now made in arrest of judgment, or for a new trial, on the following grounds:
    1. That the Act of 1837, on which the indictment .is founded, has been repealed by the Act of 1840.
    2. That indictment is not the proper remedy under the Act.
    3. That two distinct offences are charged against the defendant in one and the same count, and the indictment cannot be sustained for that reason, and because of duplicity; and his Honor erred in charging the contrary.
    4. That the Act is directed against “ the owner or occupier of a grocery store or retail shop, in which liquors have been, and are vended,” and it was therefore necessary to prove that the defendant was a licensed retailer ; and this not having been done, the indictment and conviction cannot be supported, and his Honor erred in charging the contrary.
    5. That the Act being directed against owners or occupiers who shall keep open their stores on the Sabbath day, and the proof being that the defendant only kept open his gate and an inner door, and that the only entrance to his house, his windows being shut, and there being none of the usual indications or appearances of an intention to traffic or sell, the indictment and conviction cannot be sustained, and his Honor erred in charging the contrary.
    6. That the Act being penal against “ any owner or occupier of a grocery store, or retail shop, or other place on Charleston Neck, in which spirituous liquors have been and are vended, who shall keep open the said stores, shops or other places, on the Sabbath day,” and the indictment charging and the proof shewing the keeping open of the front door of only one store or shop, the indictment and conviction cannot be supported, and his Honor erred in charging the contrary.
    7. That the article alleged to have been sold was a pair of suspenders to one negro, and the Act is scarcely punishable within the meaning of the law.
    8. That there was not only no proof of license, but no proof of vending liquors during the entire month, in which •the offence was charged to have been committed; yet his Honor ruled the proof sufficient to convict.
    9. That defendant’s shop was not kept open, in the meaning of the Act, as his frontdoor and windows on both streets were closed, and only his back door (and that the single one of the house,) was open, and there was no proof that he opened that or the gate leading in the yard.
    10. That, the second clause of the single count of the indictment is incurably defective, in not stating the names of the negroes with whom the alleged traffic took place, nor their owners’s names, nor the articles or subjects of the alleged traffic; and the finding and conviction thereon cannot be supported, and his Honor erred in charging the contrary.
    11. That the verdict was, in other respects, contrary to law and evidence.
    Kunhardt & Yeadon, for the motion.
    ■Baily, Attorney-General, contra..
   Curia, per

Evans, J.

This indictment is founded on the Act of 1837, (8 Stat. 596,) which is in these words: “ it shall not be lawful for any owner or occupier of any grocery store or retail shop, within the limits of Charleston Neck, (fee., to keep open the said stores, shops, or places, or to trade, traffic or barter therein, with negroes or persons of color, at any time on the Sabbath day, or any other day after the hours of 9 o’clock, P. M., from the 20th September to the 20th of March, or 10 o’clock, from the 20th of March to the 20th of September,” (fee. “ And in case any owner or occupier of any such store, (fee., shall transgress or violate this Act, by keeping open the said stores, or trading, trafficking or bartering therein, with any negroes or persons of color, on the Sabbath day, or any other day, after the hours,” (fee. The indictment charges that the defendant, being the owner and occupier of such shop, “ did keep open the same on the Sabbath day, and did trade, traffic and barter therein, with negroes and persons of color.” There are a great many grounds of appeal. Only a few of them have been insisted on in this court; and I shall notice only such as we think necessary to express an opinion on. These are, the 2d, which alleges “ that indictment is not the proper remedy under the Act;” and 3d, “that two distinct offences are charged in one and the same count, and the indictment cannot be sustained for that reason, and because of duplicity.” On the first ground, a single remark will be sufficient. It is stated in Chitty’s Crim. Law, that if a statute prohibit an act to be done, under a penalty certain, though no mention be made of indictment, the party may be indicted ; but if another mode of recovery be prescribed, that must be pursued. The case of The State vs. Matthews, 2 Brev. Rep. 82, is in conformity with this. The words of the Act on which that indictment was framed, were, “ to be recovered by bill, plaint, or information by any one who shall sue for the same. The words sue for plainly indicating a civil action. The second point is not so clear of difficulty. All the authorities concur that two distinct offences cannot be blended in the same count of an indictment; but it does not seem to me that the count in this case does include two offences. I would rather say it includes two specifications of the same offence. The object of the Act seems to me to have been, 1st, to compel shop-keepers to shut their shops, and to abstain from trading with slaves on the Sabbath day; and 2d, to prohibit them from doing the same after certain hours of the night, The great object was to put an end to the indecency of keeping an open shop, and trading on Sunday, and to cut off all midnight trading, by fixing certain hours, after which no shop should be kept open, or trading allowed. The offence charged in this indictment is the desecration of the Sabbath, of which the open shop, and the trafficking with slaves are the specifications. This is in strict conformity with the precedents af indictments on similar statutes. The statute against forgery is in these words; “ shall falsely make, forge, or counterfeit, or cause or procure to be falsely made, forged, or counterfeited, or willingly aid or assist in the false making, forging or counterfeiting any deed, will, &c” In all the approved precedents to be found in the books on criminal pleading, all these various modes of committing the offence of forgery are set out in one count in the conjunctive, as in this indictment. By the Act of 1754, it is enacted, “ all and every person who shall enveigle, steal and carry away, any negro or other slave, or shall hire, aid, or counsel, any such person to enveigle, steal, or carry away, any such slave, so as the owner or employer shall be deprived of the use and benefit of such slave.” All the precedents on this Act that I have seen, set out that the prisoner did enveigle, steal and carry away. These words are not synonymous, but import the various means by which the crime is committed. The same remark will apply to the words, “ hire, aid or counsel,” which are always set out conjunctively in the second count of an indictment under the Act. These analogies, I think, sufficiently sustain the correctness of' this indictment. It charges that the defendant, on the Sabbath day, kept his store, open, and did trade with negroes. The proof of any one of these specifications is sufficient, to authorize a conviction.

As to the ground which relates to the insufficiency of the proof, I have no remark to make, except that it satisfied the jury. Motion dismissed.

Richardson and O’Neall, JJ., concurred.

Wardlaw, J., dissented.  