Opinion
(December Term, 1845.)
1. Keeping an open shop and selling goods on Sunday is not an indictable offense in this State.
2. Profanation of Sunday is only punishable here by certain pecuniary penalties imposed by the Legislature and to be recovered before justices of the peace.
APPEAL from CUMBERLAND Fall Term, 1845; Caldwell, J.
Attorney-General for the State.
Warren Winslow and D. Reid for defendant.
The indictment in this case charges that the defendant, being (74) a common Sabbath-breaker and profaner of the Lord's day, commonly called Sunday, on 1 September, 1844, being the Lord's day, and on divers other days, etc., in the town of Fayetteville, in Cumberland County, did keep a common, public, and open shop, and in the same shop did then, etc., being the Lord's day, openly and publicly expose to sale and sell spirituous liquors to divers persons to the jurors unknown; and concludes to the common nuisance and at common law.
On not guilty pleaded, there was a verdict for the State, but the court arrested the judgment, and the Solicitor appealed.
The acts imputed to the defendant are lawful, and constitute no offense unless it may be in respect of the time at which they were done; for it is lawful for the defendant to keep an open shop in Fayetteville and sell thereat spirituous liquors. The question is whether it is criminal to do so on Sunday.
The indictment is framed upon the precedent, in 2 Chit. Cr. L., 20, which is taken from the Crown Circuit Companion. Notwithstanding the precedent, and what is said by some writers on the law, it may be doubted whether, in the Superior Courts in England, the profanation of Sunday, merely as such, would be held to be indictable; and this, for the reason suggested in S. v. Williams, 26 N.C. 400. If this indictment would lie there, how can the act of 29 Car. II., ch. 7, be accounted for, which forbids the working on Sunday under a penalty of 5 shillings, and the selling of goods on Sunday under the pain only of forfeiting them. However, if such an indictment be sustainable in England, it must be, as we conceive, and stated in the case referred to, because working or trafficking on Sunday is, according to the doctrine of the (75) established church, a profanation of that day; and, as it is thus criminal according to the law of the church, it becomes criminal against the civil government, which established the church. But that reasoning is entirely inapplicable here. With the theological question the Court disclaims the intention to concern. We have no right nor purpose, as municipal judges, to decide or discuss it, even if we were competent to handle a point which has been so much controverted among learned and pious men of almost all periods. But our duty is strictly limited to the inquiry whether the law of North Carolina, as the law of the State, and not of a religious establishment, has made the profanation of Sunday, by keeping open shop, an indictable offense. And upon it we must say, as we said in S. v. Williams, that it has not, and for the reasons given in that case. We have no established church, with authority to prescribe duties in reference to this or other religious tenets, to which all the citizens are bound to render obedience; and, merely as the violation of a duty of religion, we cannot punish the profanation of Sunday. When the Legislature made it criminal, the courts became bound to hold it a crime to the extent enacted, and to punish it as prescribed in the statute, which gives penalties to be recovered before justices of the peace, and does not declare it an indictable misdemeanor. In other words, we think the courts cannot go before the Legislature on this point, and, therefore, that the judgment was properly arrested in this case.
PER CURIAM. Affirmed.
Cited: S. v. White, 76 N.C. 16; Rodman v. Robinson, 134 N.C. 507.
(76)