
    
      Henry Weikman ads. The City Council of Charleston.
    
    1. In an action to recover a penalty imposed by an Ordinance of the City Council of Charleston, for an offence which consisted in “keeping spirituous liquors,” without license, in certain places therein mentioned, the declaration, to suit the various terms of the Ordinance, stated in the first count, the shop, in the second, the back room, and in the third, the premises connected with the shop; and the verdict was “guilty of having liquor in the back room,” and the fine assessed at fifty dollars. Held that the words immediately connected with “guilty,” shewing of what guilt had been found, could not be rejected as surplusage.
    2. It is only where a verdict, before certain and valid, according to a fair construction, has been cumbered by the addition of useless matter, not qualifying the previous meaning, that the addition can be rejected as surplusage.
    3. Although the technical words, “in manner and form, as alleged in the second count,” might be added to the words “guilty of having,” &c. yet, when thus amended, the offence as alleged, would not be found.
    4. Reasonable intendment, and the addition of manner and form, cannot alter or enlarge the meaning of the other words in the verdict. If the act found by the addition of manner and form constitute the fact to be found, then the verdict is certain; but if the act found, when made precise, be not the fact alleged, the addition will only give time, place, circumstance and manner to the act found, but leave still the variance between it and the fact alleged.
    
      
      Tried in the City Court of Charleston, before his Honor the Recorder, .January Term, 1843.
    This was an action of debt for a penalty against the defendant, as the keeper of a retail grocery, for a violation of the Ordinance of the 1st of June, 1840, prohibiting the having of spirituous liquors without a license, in the shop or on the premises.
    'I he City Treasurer stated that he did not know the defendant, but knew that he had no license to sell spirituous liquors.
    Several other witnesses were examined by the plaintiffs, as to the fact whether defendant kept a retail grocery and had spirituous liquors there.
    When the evidence closed, defendant moved for a non-suit, on the ground that there was no proof of his residence within the city.
    The motion was refused on the ground that it is understood to have been the invariable construction of the statute of 1801, (7 S. L. 300) establishing the court, from the time it was passed, that in all actions for offences against the bye-laws, the ordinances of the corporation, the court has jurisdiction, whether the defendant did or did not ieside in the cityj provided the offence Was committed within its limits, dnd it was within the principle of the case of The City Council vs. Miller, decided in Í822, referred to by the court in the case of The City Council vs. King, 4 McC. 487. The same point is said to have been ruled by the Constitutional Court in 1818, in the case of The City Council vs. Schioach, 1 Rice’s Dig. 185 (28.)
    The case was then argued to the jury by the counsel, and the court charged the jury that the law was not unreasonable or unconstitutional; that it was within the power given by the Legislature to the City Council; that it had been subjected to the examination of the highest court of law known to our jurisprudence, and had been sanctioned, in the case of The City Council vs. Heisembrittle, decided in Charleston, February Term, 1842; that the important question was, had the defendant spirituous liquors in his retail grocery store, without a license, in violation of the Ordinance — that although so many different kinds of liquors were named in the declaration, it could not be required of the plaintiffs to prove them all as stated, but that if they, the jury, were satisfied that there were spirituous liquors, that would sustain the charge; and the questions of fact were left to the jury, who found the verdict set forth in the accompanying notice of appeal, which verdict the court ordered to be recorded.
    Defendant appealed, on the following grounds.
    1. That the residence of defendant within the city of Charleston for three months immediately preceding the commencement of the suit in this case, or four months in the year preceding the commencement of this suit, was not averred of otherwise made to appear on the face of the declaration, nor proved on the trial.
    2. That the City Council had no power to pass the Ordinance creating the offence on which the action in this case was founded; or the said Ordinance was contrary to reason, republican equality and common right, and is therefore null and void,
    3. That there was no sufficient proof of spirituous or other liquor being kept in the back room of defendant, or of the identity of the defendant, or of his keeping the store.
    4. That there was no proof that any one of the liquors specified in the declaration was kept any where on defendant’s premises, and the only witness who testified as to liquor at all, stated he only saw kegs and smelt liquor, and could not tell from smell or otherwise what particular kind of liquor it was, and his Honor, it is respectfully submitted, erred in charging the jury, that on such evidence they could convict the defendant of the multitudinous charge of keeping on his premises “certain wine, malt and spirituous liquors, to wit: divers rum, brandy, gin, whiskey, wine, ale and beer, of the value of one hundred dollars.”
    5. That there was no proof that the defendant kept a retail grocery store “where meat, grain, fruit, provisions and other articles were then and there exposed for sale ;” there being no proof of the exposure for sale of any of the said articles in defendant’s shop, and his Honor erred in charging the jury that they could Convict the defendant without such proof,
    
      6. That there is no count in the declaration to which the verdict applies, and on which the judgment can be entered up, the verdict being “we findjhe defendant guilty of having liquor in the back room, and assess the fine at fifty dollars,” and there being no count in the declaration charging, nor any law constituting, such an act an offence.
    7. That the verdict was in other respect's contrary to law and evidence.
    
      Yeadon Sp McBeth, for the motion. Eckhard, contra.
    
      City Ordinance, June 1,1840. — “No person or persons, owning and keeping a retail grocery shop within the city, where meat, grain, fruit, provisions pr other articles are exposed for sale, not having a license from the . City Council of Charleston, in force, to retail wine, malt or spirituous liquors, shall be permitted to keep in such shop, or in any room adjacent thereto, or on the premises connected with such shop, any wine, malt or spirituous liquors, in any quantity whatever ; and if any such wine, malt or spirituous liquors shall be found in any such shop, or in any inner room adjacent thereto, or op the premises connected with such shop, the owner and keeper thereof shall forfeit and pay for every time when the same shall be so found as aforesaid, a sum not exceeding $300, nor less than $50, in addition to such fine as may be imposed by law, for retailing without a license.”
    All the counts iri the declaration charge the defendant with keeping malt, wine and spirituous liquor in the shop, or on the premises.
   Curia, per

Wardlaw, J.

The declaration contained three counts, in which the place where the prohibited liquors were alleged to have been kept and found, was variously stated to suit the terms in the ordinance. The first count stated for the place the shop ; the second, the back room ; and the third, the premises connected with the shop.

For the defendant it is now contended that the verdict is void for imperfection,and uncertainty — “having liquors,” not being a sufficient designation of an offence which consists in “keeping spirituous liquors.”

For theplaintiffs, it is contended that either the words “of having liquor,” may be rejected as surplusage, or to the end of the first clause of the verdict, may be added technical words referring to the counts, so that the verdict shall read “guilty of having liquor in the back room, in manner and form as is alleged in the second count;” and that thus amended, the verdict would mean guilty of having liquor in the back room, in a manner prohibited by the ordinance; that is, guilty of the offence alleged in the second count.

If the words immediately connected with guilty, and shewing of what guilt has been found, could be here rejected as surplusage, so as to reduce the clause to a simple finding of “guilty,” then the like might be done, if the verdict were “guilty of having water,” or “guilty of nothing.” It is only where a verdict, before certain and valid, according to a fair construction, has been cumbered by the addition of useless matter, not qualifying the previous meaning, that the addition can be rejected as surplusage.

In general verdicts, modo et forma, being merely technical words, may be supplied; for the inquiry of the jury being properly confined to the facts which are comprised in the issue, it must be intended that whatever facts may be found, are according to the allegations made, unless a different intention can be inferred from the verdict. Therefore, in the case of the Commonwealth vs. Judd et al. 2 Mass. 329, (which has been supposed most to favor the plaintiffs’s second view,) in an indictment for a conspiracy, to make a base composition resembling indigo, out of indigo and four other ingredients, with fraudulent intent to sell the same at auction, a verdict that the defendants conspired to make base and spurious indigo, with fraudulent intent to sell the same, was supplied by adding the words, “in manner and form as set forth in the indictment;” and in this shape, the material facts of the conspiracy and fraudulent intention having been clearly found, the sale mentioned in the verdict appeared to be the sale at auction alleged in the indictment, and the manner of making the spurious indigo mentioned in the verdict, appeared to be the manner alleged of making the base composition, and the variance between the spurious indigo in the verdict, and a base composition of indigo and other ingredients, in the indictment, was held not to be material; inasmuch as the two descriptions indicated the same article.

If, however, after supplying technical words, the intention of the jury be left doubtful, the verdict is insufficient. 11 Peck. 45; 2 Wheat. 221. The certainty essential to that ascertainment of fact, upon which judgment is to be pronounced, has not been attained. Any doubt left, after reasonable construction, must arrest the judgment. See Com. Dig. PI. S. 19, 34; and reasonable construction infers that the mention of one of the several particulars is the exclusion of the others, that part of a whole adopted is a rejection of the remainder, and that material omissions accruing have been intentional.

If, in the indigo case, the verdict, instead of describing, by other words held to be equivalent, the base composition alleged in the indictment, had mentioned a composition made of three o.ut of the five ingredients alleged, the variance could not have been held immaterial, if the exact nature of the composition entered into the question of the offence imputed.

Reasonable intendment, and the addition of manner and form, cannot alter or enlarge the meaning of the other words in the verdict. If the act found, by the addition of manner and form, .constitutes the fact to be found, then the verdict is certain; but if the act found, when made precise, be not the fact alleged, the addition will only give time, place, circumstance and manner to the act found, but leave still the variance between it and the fact alleged.

So strict have our own courts been in construing a verdict, that in the case of The State vs. Lohman, Riley’s Law Cases, 234, the issue being whether the defendant delivered under the first count, or gave under the fourth count, spirituous liquors, to a certain slave of J. F. Mintzing, named Sam ; and the verdict being “ guilty of the first and fourth counts, of giving and delivering liquor to a slave,” the judgment was arrested, almost as a matter of course, with the concurrence of the Judges present.

In that case, it might have been suggested, that guilty of the first and fourth counts, was, itself, a certain verdict, and all afterwards was surplusage ; or, that by adding the technical words, “ in manner and form as set forth in the said counts,” the uncertainty created by the use of the article a, was removed. But it must have been considered by the court, that the addition made in a general verdict was significant of something, else it would not have, been made, and as it showed that the jury were agreed that the defendant gave or delivered a liquid to a slave, silence, as to every thing else, showed that they had not ascertained the slave to be the one described in the indictment.

In the ease before us, the technical words may be supplied, so that the verdict may read “ guilty of having liquor in his back room, in manner and form as alleged in the second count;” but after the amendment, the offence alleged has not been found. If the having liquor in a certain manner, for a certain purpose, during a certain time, or with other certain circumstances set forth, constituted the offence, the verdict would serve. But without now undertaking to define what the Ordinance means by keeping spirituous liquors, and without adverting to the indefiniteness of the term liquor, it maybe assumed as manifest, that keeping is something more than having, and that having may be accidental, occasional, for medicinal purposes, or in various ways innocent, even although accompanied by all the circumstances of time, place, manner, and form set forth, if it do not amount to keeping. It will not do to say that having, modo et forma, &c., must be the offence alleged, inasmuch .as it is having in the manner which is alleged to be in violation of the Ordinance. Unapt words used in the description of the offence would not in the count be aided by the allegation “in violation of the ordinance:” and in the verdict the technical words merely give precision and circumstance to the previous statement, but do not change it so as to embrace various acts, in a word designating only one, or the whole, in words ' describing only a part. When the jury, instead of finding a verdict of guilty, without qualification, use words to describe the fact found, and omit a portion of the ingredients of guilt, it must be supposed that that portion has not been found, however exact the statement of the other portion be made. Such explanatory verdict may be the result of compromise, or of conscientious scruple in the jury, and much injustice might result from extending its meaning beyond the expression used. If under an indictment for stealing a cow and a .calf, the verdict should be “guilty of taking the cow,” no addition of modo et forma could make taking include the carrying away and the felonious intention, even although the offence charged would be against our statute, and should be so alleged. So here, the something more than having, which is included in keeping, and the characteristics which distinguish spirituous liquors from other liquor, cannot be embraced by the words having liquor, which the jury have chosen to express the facts in which they were agreed.

A serious division of the court has seemed to require this tedious examination of what might otherwise have been deemed an unimportant matter. Let the verdict be set aside and a Venire facias de novo be issued.

Richardson, Evans, and Butler, JJ. concurred.

O’Neall and Frost, JJ. dissented.  