Opinion
(June Term, 1877.)
City Ordinance — Criminal Prosecution — Defect in Indictment.
Where the defendant is prosecuted under a city ordinance which provides that any person "refusing or neglecting to pay license tax, etc., for the space of five days, etc., shall be subject to criminal prosecution," the indictment is fatally defective if it fails to allege that the defendant neglected or refusel [refusal] to pay the tax, etc., for the space of five days.
APPEAL at January Special Term, 1877, of NEW HANOVER, from McKoy, J.
Attorney-General and D. L. Russell for the State.
A. T. J. London for defendant.
This was an appeal from the judgment of the mayor of the city of Wilmington, who imposed a fine of $25 on the defendant for failure to obtain a license as liquor dealer, as provided by city ordinance. Upon a special verdict in the court below, his Honor adjudged the defendant guilty. Judgment. Appeal by defendant.
The defendant was indicted for engaging in the business of a liquor dealer in the city of Wilmington without having obtained a license to do so, in violation of an ordinance of the city, to wit, section 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 (501) prosecution," etc.
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.
PER CURIAM. Judgment arrested.
(502)