State v. Charlton.

"The next inquiry is whether the policy being void by reason of the building insured being upon leased ground, does this render void the alleged adjustment of the damages to be paid to the plaintiff by the defendant, the agents of the defendant having full knowledge of all the facts when they made the adjustment? In other words, does their ignorance of the law as to the rights and responsibilities of the parties render the adjustment made by them void? I am of opinion that it does not. If a party, through ignorance of fact, has either paid money or promised to pay money for which he was not liable under the supposition that he was liable, he may recover it back in the one case, or refuse to fulfill the promise in the other. Goodall v. Dolley, 1 T. R. 712; Williams v. Bartholomew, 1 B. & P. 327; Donaldson v. Means, 4 Dall. 109; Crain v. Caldwell, 8 Johns. 384; Garland v. Salem Bank, 9 Mass. 408. But ignorance of law, the facts being known, furnish no ground for the recovery of money which has been voluntarily paid, or for avoiding a promise to pay. Stevens v. Lynch, 12 East, 38; Lundie v. Robertson, 7 id. 231; Bilbie v. Lumley et al., 2 id. 469; Lowry v. Bourdieu, Doug. 468; Duryee v. Dennison, 5 Johns. 248. These principles were approved and applied to a case of an adjustment made by an insurance company, in Dow v. Smith, 1 Cai. 32. We see no reason why they should not be as applicable to an adjustment made by an insurance company with full knowledge of the facts as to a promise by an individual to pay any debt for which he supposes himself responsible in law, he knowing when he makes the promise of all the facts."

An indictment charging in the words of the statute, the sale of intoxicating liquor, without a license, "to be drunk in, upon or about the building or premises where sold," is bad for uncertainty.

[NDICTMENTS for selling at retail intoxicating liquors "to be

without obtaining State license therefor according to law." DeConviction.

murrers.

Attorney-General, for the State.

Robert Mc Connell, for Charlton.

Hanson Criswell, for Allum.

GREEN, President. The question for consideration in these cases is: Should the court on demurrers to the indictments severally have sustained the indictments as sufficient? The indictment in charging the offense uses the language of the statute, see chap. 99, § 1, of Acts of 1872-3, p. 253. In indictments it is generally proper

State v. Charlton.

See

and sufficient to describe the offense in the very terms used by the statute for the purpose. Young's case, 15 Gratt. 666; Burner's case, 13 id. 778. To this general rule there are exceptions. Thus in some cases it is necessary for the allegation in the indictment to go beyond the words used in the statute; numerous examples are given of this in Bishop's Crim. Proc., vol. 1, §§ 369 to 374, of which it is unnecessary to speak. An instance, however, where the words of the statute ought not to be used, though not properly an exception to this general rule, exists which I will specify, as it bears directly on the validity of the indictments in the cases before us. Where a statute, on which an indictment is founded, enumerates the offenses or intent necessary to constitute the offenses disjunctively, the indictment is fatally defective, which uses the words of the statute charging them disjunctively. Wharton's Crim. Law, vol. 1, § 295; 1 Bishop's Crim. Proc., § 334. Thus in Angell's case, 2 Va. Cas. 231, it was held that where the statute said, "whoever shall unlawfully shoot or stab another, with intention to maim, disfigure, disable or kill, shall be," etc., the indictment was properly drawn which charged the act done" with the intention to maim, disfigure, disable and kill,” and that the party on such an indictment should be found guilty, if his intention was only to maim, disfigure and disable and not to kill. If this indictment had followed the words of the statute, it would have been bad, for it would have violated the well-established rule that an indictment must state the offense disjunctively, when it is thereby left uncertain what was really intended to be relied on as the accusation. The question for consideration in the cases before us is, do the indictments in these cases violate this well-established rule? It is uncertain from these indictments whether the State meant to rely upon the selling by the accused of intoxicating liquors at his house to be drunk in the building, or whether it meant to rely upon the selling of intoxicating liquors by the accused at his house to be drunk upon the premises. That is not in the building, but upon the lot adjacent to his house? It is insisted by the attorney-general that the indictment shows that the State meant only to rely on the accused selling intoxicating liquor in his house, that the words building and premises, as used in the indictments, meant the identical same thing, and that the expression building or premises, as used, meant the same as building, to wit: premises; the word premises meaning the same as the preceding word building

State v. Charlton.

If this be the true interpretation of the words used in these indictments, then they are clearly valid, there being no legal uncertainty as to what accusation the State relied upon. See Commonwealth v. Grey, 2 Gray, 501; Bronn v. Commonwealth, 8 Mass. 59. If, however, the statute, chap. 99, § 1, of Acts of 1872-3, p. 253, intended to punish not only the selling of liquor in the building where sold, but also upon the premises adjacent to said building, then this indictment which uses the identical words of the statute, must be interpreted in the same manner. The meaning of this act seems to me clear, the language is "in, upon or about the building or premises where sold." The natural meaning of this is "in the building where sold, or upon or about the premises adjunct to the building where sold." If the word premises meant in this statute or indictment, the same as building, then we construe the act and indictment as though it read "to be drank upon the building where sold," a construction which seems absurd. That the legislature by this act intended to punish the selling without license, of intoxicating liquor to be drank not only in the building, but "upon the premises adjunct thereto," appears from the further prohibition immediately following: "his selling such intoxicating liquor in any adjoining room, building or premises, or other places of public resort connected with the said building."

The attorney-general relies, to sustain these indictments, on the cases of Cunningham v. State, 5 W. Va. 508, and Morgan's case, 7 Gratt. 592, where it was held not to be error to charge the offense of selling spirituous liquors, wines, etc., without license, by using the word "or" in lieu of "and" in describing the various kinds of liquors and drinks, charged in the indictment to have been sold without a license. In reference to these cases it is to be observed, that Judge BERKSHIRE, in delivering the opinion of the court in the first of them, says in reference to this objection to the indictment, "if this were an open question, I am disposed to think there would be much force in it. But in Morgan's case, 7 Gratt. 592, it was held that it was no error to use the word 'or' (as in this case) instead of the word 'and' in describing the various kinds of liquors and drinks, charged to have been sold in the indictment. That case therefore must be conclusive of the present case." The court in Morgan's case cited no authorities and expressed no opinion, simply affirming the judgment below. And Bishop in his Criminal Procedure, vol. 1, § 337, says that this case is contrary to

State v. Strauder.

been held elsewhere. It may be perhaps

the general doctrine. The contrary has See §§ 3, 36, and authorities there cited. SS that the indictment in Morgan's case, 7 Gratt. 592, was held good, because it might have been considered that, as the State could not reasonably be required to allege or prove the particular kind of spirituous liquors sold, it ought not to make an indictment bad for uncertainty, to allege that it was of one kind or another. If this was the ground of this decision, it would be inapplicable to the cases now under consideration, as the State could without any difficulty show, and ought therefore to allege, whether the liquor was sold to be drank in the building, or on the premises adjunct to the building. But be the reason what it may, for the decision in Morgan's case, it ought not to be regarded as overthrowing the general rule, that an indictment ought not to state the case disjunctively, when it is thereby left uncertain, what is really intended to be relied on as the accusation. And while Morgan's case must govern us whenever a case like it arises, yet we cannot safely extend it to cases which differ from it and fall within this general rule.

The judgment of the Circuit Court in each of these cases must therefore be reversed and annulled; and this court proceeding to render such judgment, as the Circuit Court should have done, doth reverse and annul the judgment of the county court, and doth sustain the demurrers to the indictments in each of these cases, and doth order that the defendants, Absalom Charlton and William Allum, severally go quit of the offenses, charged against them in said indictments severally.

Judgments reversed.

A colored man cannot remove an indictment against him into the Federal court for trial, upon the allegations that such prejudices exist against his race in the State that justice will not be done him, and that none but white men can there sit on the jury.

IN

State v. Strauder.

NDICTMENT and conviction of murder. The prisoner petitioned for the removal of the indictment for trial to the United States Circuit Court, alleging that he was a person of color and an emancipated slave; that his defense would depend greatly on the fact of his marriage at the time of the alleged offense; that there was a general impression in that county and State that colored men were not entitled to the same protection in their marital relations as white men; that no colored man was eligible under the State law to serve on a jury; that he believed that he could not have the same benefit of law that white citizens enjoy, and feared a denial of his rights, etc. The petition was refused.

Davenport & Dovener, for the prisoner.

Attorney-General, for the State.

GREEN, President. [Omitting all other points.] The third error assigned is, that "the court should have granted the prayer of the prisoner to have his cause removed to the Circuit Court of the United States."

The Revised Statutes of the United States, section 640, under title 13, chapter 7 (see Rev. Stats. of U. S. p. 114), provide among other things "when any criminal prosecution is commenced in any State court against any person who is denied, or cannot enforce, in the judicial tribunal of the State, or in that part of the State where such prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, such prosecution may, upon the petition of such defendant filed in said State court at any time before the trial, stating the facts, and verified upon oath, be removed for trial in the next Circuit Court to be held in the district where it is pending." And section 1977 of the Revised Statutes of the United States under 24th title "Civil Rights," p. 348, provides: "All persons within. the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses and executions of every kind and to no other.