#### THE TOWN COUNCIL OF LINCOLNTON vs. DAVID McCARTER.

A town ordinance imposed a penalty upon any licensed retailer, who should on Sunday “ open his shop where he retails for the purpose of Selling,” &c.: — Held, that the corpus delicti under the ordinance is the selling, &c., and that no penalty was incurred by merely opening the shop for the purpose of selling.

This was an action of debt, commenced by warrant before a Justice of the Peace to recover from the defendant a penalty pf twenty-five dollars, for violating an ordinance of the town Council of Lincolnton, as alleged by the plaintiff.

On the trial, before his Honor Judge Caldwell, at Lincoln, on the last Spring Circuit, the plaintiff's counsel produced a book containing the record of the proceedings of the said Council, in which was the following ordinance: — “ Ordered by the Town u Council of Lincolnton, that any person having license to retail “ spirituous liquors by the small measure in the town of Lincoln- “ ton, who shall keep or open his shop where he retails for the cc purpose of selling or giving away spirituous liquors to any per- “ son or persons, except it be for medical purposes, shall,- for each *430 “ and every offence of selling or giving spirituous liquors upon “ the Sabbath day, forfeit and pay a penalty therefor, the sum of il twenty-five dollars,” &c. The warrant charged that the defendant owes to, and detains from the said town Council, &c., “ for having sold or given, or opened his shop for that purpose on the Sabbath day, to wit, on 13th June, 1852, at his shop where he retails spirituous liquors in Lincolnton, a quantity of spirithous liquor to E. J. Alexander, it not being for medical purposes,” &c. Among' the witnesses introduced was Alexander, named in the warrant, who testified that after the publication of said ordinance, die defendant had never sold him any spirits on Sunday, neither had he given him any, nor opened his grocery to him, and he never knew of defendant’s violating the ordinance with regard to others. One Williamson swore that he had known the defendant, since the publication of the ordinance and before this suit was commenced, to sell spirituous liquor to one person on Sunday, and that the said Alexander got a part of it; and he further stated, he knew that a person, by knocking at the door, might gain admission to the grocery on Sunday.

The defendant insisted that the evidence, if believed, did not amount to a violation of the ordinance, and that he could not be convicted upon the said warrant. (Many points were made upon the trial below and in this Court, which as the case turned on one only in this Court, it is not deemed necessary to stale here.)

His Honor, the presiding Judge, charged, among other things, that if the defendant had not sold spirituous liquor to E. J. Alexander on Sunday, he was not guilty on that part of the case ; but if they believed the testimony of Williamson, the defendant was guilty under the other clause of the ordinance, for opening his grocery doors with a view of selling spirits, and they should find for the plaintiff. There was a verdict for the plaintiff, and judgment having been rendered accordingly, the defendant appealed to the Supreme Court.

Guión, for the defendant.

Thompson, contra.

Battle, J.

The bill of exceptions filed by the defendant, *431presents several distinct objections to the plaintiff’s right to recover, of which it is necessary to decid e one only — that being clearly in favor of the defendant, and entitling him to a venire de novo. Tire provisions of the ordinance, for the violation of which the warrant was sued out, seem to have been misapprehended by his Honor in the Court below. No penalty is given against a retailer of spirituous liquors in the town of Lincolnton, for merely keeping or opening his shop on the Sabbath day, for the purpose of selling or giving spirituous liquors to any person ; but it is given for each act of selling or giving such liquors on that day, for other than medical purposes. The defendant could not, then, be held to have violated the ordinance, until he had kept or opened his shop on the Sabbath day, and ■ had sold to E. J. Alexander a. quantity of spirituous liquors, for other than medical purposes. The allegations of the warrant, which stands for the plaintiff’s declaration, (Dufy v. Averitt, 5 Ire. Rep. 455,) must be substantially proved ; but that they were not so as to the defendant’s selling or giving a quantity of spirituous liquors to Mr. Alexander, was manifest., and was so stated by his Honor. He ought, then, to have instructed the jury that the plaintiffs had failed to establish their case, and that the defendant was entitled to a verdict. Instead of doing this, he instructed them, that the defendant was guilty under another clause of the ordinance, when, by a proper construction of that clause, it appears not to have denounced against the defendant any penalty whatever. For this error there must be a venire de novo.

Per Curiam. Judgment reversed, and a venire de novo awarded.