
    
      The State vs. F. Helgen.
    
    1. In an indictment under the Act of 1837, (8 Stat. at Large, 596,) which declares it to be unlawful “ for any owner or occupier of a grocery store or retail shop within the limits of Charleston Neck, or any store, shop or place, within the limits aforesaid, wherein are vended spirituous liquors, 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., it is unnecessary to set out the name of the negro with whom the defendant is charged with trading, or that of the owner, as the Act prohibits entirely the trading on the Sabbath, and the written license of the owner would be no justification.
    2. The principles settled in The State vs. Meyer apply to this case.
    
      Before Ealle, J., Charleston, May Term, 1841.
    The defendant was indicted under the second section of the Act of 1837, to amend an Act entitled an Act to regu-' late the performance of patrol duty on Charleston Neck, and for other purposes; which subjects to a forfeiture of one hundred dollars, any owner or occupier of a grocery store, or retail shop on Charleston Neck, or of any store, shop or place there, wherein liquors are vended, who shall keep open the said stores, shops or places, or shall trade, traffic or barter therein, with negroes or persons of color, at any time on the Sabbath day, cfec.
    The charge was, that the defendant, being such owner and occupier of a grocery store and retail shop, &c., did keep open the same on the Sabbah day, and did trade, traffic and barter therein, with negroes and persons of color, pursuing the phraseology of the Act.
    The proof was, that the defendant kept a retail shop for selling liquor, at the corner of Meeting and John streets, on the Neck, with an outside door opening into both streets. The door on John street was proved to have been found open on a Sabbath morning, about sunrise. The defendant himself, with his family, occupied another house, back in the yard, and had not risen. Two clerks were in the shop. The defendant being sent for, and told that it was against the law, ordered the clerks to close the door, which, after the arrival of the witnesses, had remained open about five minutes. No negroes were proved to have been in or about the shop, and of course there was no trading proved. The defendant had before been furnished with a copy of the Act.
    
      The several legal exceptions which are now made the grounds of appeal, were taken by counsel, and were overruled. In regard to the 8th, 10th and 11th grounds, the jury were instructed that the door being accidentally or inadvertently opened, or casually opened, for some innocent purpose unconnected with traffic, or on somé sudden emergency, would not incur the forfeiture. What should be deemed sufficient proof that the door uvas kept open for the purpose of traffic, the court did not undertake to prescribe. Nothing can be inferred from the length of time the door was proved to have been open ; it was closed within five minutes after the arrival of the witnesses who testified. How long it had been open before, they could not say. It yvas not proved that the clerks slept in the shop ; nor was it proved that there was no back door which would have served as a place of exit. In the absence of the defendant, the jury were instructed that he should not be convicted, unless they were satisfied that the shop was kept open by his direction, or with his knowledge and approbation. Verdict, guilty.
    A motion was now made in arrest of judment, 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 indictmentis 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 indictment charging two distinct offences in one count, and the evidence proving the commission of but one of these offences, if any, the finding of a general verdict by the jury cannot be supported, and his Honor erred in charging the contrary.
    5. That the Act is directed against “ the owmer 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.
    
      6. That the Act being directed against owners or occupiers who shall keep open their store on the Sabbath day, and the proof being that the defendant only kept open his front doors, 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.
    7. 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.
    8. That his Honor erred in charging the Jury that the offence under the Act was consummated by the mere act of keeping open the front door, without proof of either actual or intended illegal traffic.
    9. 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.
    10. That defendant’s shop was not kept open within the meaning of the Act, as it was seen open only five minutes before sunrise in the morning, and was closed immediately on the requisition of the patrol.
    11. That the offence charged, if committed by any one, was committed, in defendant’s absence, by the clerk, without any evidence to connect defendant with the act, and his Honor erred in charging that defendant might be convicted on such evidence.
    12. That the verdict was, in other respects, contrary to law and evidence.
    Kuni-iardt & Yeadon, for the motion.
    Baxley, Attorney General, contra.
   Curia, per

Evans, J.

This case is, in all essential particulars, like the case of Jacob Meyer. All the principles decided in that case apply to this. They differ only in this: in Meyer’s case, the proof was a trading with a negro on the Sabbalh day, and in this case the proof was that Helgen had his shop open on the Sabbath. There is one ground common to both cases, omitted in Meyer’s case, on which I would make one or two remarks, viz: that neither the negro’s or the owner’s name is mentioned in the indictment. In Schroder’s case, reported in Riley’s collection of law cases, it was held that the negro’s name, and that of his owner, should be set out, because a ticket from the master would justify the trading; and it was necessary to give notice with what negro the defendant was charged with trading, in order that he might prepare his defence. No such information is necessary to be given to him in this case, as the Act prohibís the trading entirely on the Sabbath, and the written license of the owner would be no justification. Motion dismissed.

Richardson and O’Neall, JJ., concurred.  