The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1893-11-08
Judge WalIace's Decision on the Dis.
pensary Law.

In the case of the State vs. John O.
,O'Donnell, indicted for selling whiskey
without license and keeping place
where whiskey is kept for sale, etc., ETC.,
which was called In the Court Of Sessions
last Wednesday, Judge Wallace rendered
orally the following decision, on motion
of the defendants counsel to quash the
Indictment:
The question as to the constitutionality
of the Dispensary Act has been much
discussed in the State, and has developed
consider diversity of opinion in
regard to it. Some able and learned
lawyers hold one opinion and others
equally as learned hold different opin
ION. have my own opinion, which I
will proceed to announce without hesita-
ton or delay. The motion was to quash
the indictment, because first the Act pro-
Syided no punishment for selling liquor
without a license. I may say in passing
that the words without q license con-
tanned in the first count are mere sur
plusage, and that the offence charged is
that, Of selling liquor:
AT common law crimes are diyiGsd
into two classes, namely, Dala in SO and
prohibita. To illustrate: We have a
statute declaring murder to be crime,
or rape or arson or burglary. These
crimes are described and punishment is
provided for them. They belong to the
class described as mala in SO. When the
com mission of an Act is prohibited by
statute it belongs to the class of mala
prohibita. The commission Of an act
prohibited by statute is an offence,
because it is violation of law. The
offence charged is prohibited by the Dis
pensary Act, and thus to sell liquor
becomes violation of the law and is
therefore an offence.
No offence created by statute is felony
unless it is so declared. Therefore, the
selling of liquor in violation of Section 6
Of the Dispensary Act is misdemeansr
and is punishable, If not by any penalty
provided in said Act, then under the
provisions Of the statute, Section 1858,
Revised Statutes:
I "Section 2,653. In cases of legal con-
viction where no punishment is provided
by statute the Court shall award such
sentence as is conformable to the common
usage and practice in this State accord
ing to the nature Of the offence and not
.repugnant to the Constitution
I am, therefore, Of the opinion, and 30
hold, that the offence as charged Is pun
ishable under the section I have just
quoted.
Is The next ground was that Section 81 Of
the Dispensary Act, under which the
is framed, relates only to the
sale or distribution Of liquors kept by
clubs or associations for the use Of the
members. The section referred to reads
as follows: "Secion 81. Every person
who shall directly or indirectly keep or
combining with others, or who shall In
any manner aid, assist or abet in keeping
or maintaining any club room or other
place in which any intoxicating LIQUORS
are. received or kept for the purpose of
barter or sale, as q Beverage or distlibu-
ton or division among the members of
any club or association, by any means
whatever, and every person who shall
barter, sell, or assist or aloet another in
bartering or selling any Intoxicating
liquors SO received or kept, shall be
Z6oorod ruilfv of a rnisdorn oopor and