¶1(Dissenting). It is with diffidence that I dissent from my senior brethren, but the facts in this case negative any purpose to violate the spirit and intent of the' statute, and I cannot concur in the opinion that the defendant is guilty.
¶2The spirit of the law is its life and substance, and the letter is but “the bark.” As the spirit may be violated without violating the letter, so, “ the letter of the law ” may be broken without violating its spirit. It has often been held that evasions of the laws are violations — often the most criminal violations — of the law, and so it has been held that a violation of the“ letter,” when the spirit has not been violated, is-, no crime.
¶3I regard the law in question as a most wholesome and just-one, intended to protect the youth of the country from the evils of intemperance, with its attendant vices and crimes, and every violation of its intent and meaning — of its spirit, and purpose — should be followed by its penalties.
¶4The mischief and evil, the prevention of which was con-*626tempi ated and intended by the statute, was the corruption of youth — by giving or selling to them intoxicating drinks or liquors; it is this that the spirit and purpose of the law as well as its letter makes criminal; but when it appears, as is conceded in this case, that there was no purpose to violate the law, but a bona fide different purpose, that was to supply a medicine admitted to be necessary and proper for the youth for whom it was honestly prescribed, it “is sticking in the bark ” to say that the accused is guilty.
¶5For some maladies and poisons, and the bite of some reptiles and poisonous insects, spirituous liquor is 'a specific remedy; and in answer to the suggestion, that in such cases,if the person attacked should be an unmarried minor, he might have to die, because the druggist could not sell or give to him .the absolutely necessary medicine, it was said that, in such cases, the dealer might give or sell it to some one for him. This would he an evasion, and if it would be no crime to evade, it would be no crime to give or sell.
¶6In State v. Wray, 72 N. C., 254, it is said that spirituous liquor is an “ essential medicine, frequently prescribed by physicians, and often used; and in this case it was bought in good faith as a medicine and was used as such. The letter ,of the law has been broken, but has the spirit of the law been violated ? … In favor of defendants criminal statutes are both contracted and expanded. Now, unless this sale comes within the mischief which the statute was intended to suppress, the defendants are not guilty; for it is a principle of the common law that no one shall suffer criminally for an act in which the mind does not concur.”
¶7A similar construction has been placed upon other criminal statutes. The statutes against carrying concealed weap.ons (The Code, §1005,) is as absolute and imperative as this, and yet in the case of the State v. Gilbert, 87 N. C., 527, indicted for carrying a pistol concealed, the fact being shown that -there was no criminal purpose to violate the law, the Court *627said: “It is true it will always be presumed to be a man’s intention to do what in fact he does, and that he must contemplate the natural consequences of his conduct; but when the jury expressly find the contrary, and that, notwithstanding the act done, there was no criminal intention connected with it, that must put an end to the prosecution.” This is in accord with the construction to be placed upon such statutes as deduced from a review of the decisions upon the subject, to be found in Bishop on Statutory Crimes, §§ 1019, 1020 and 1021: “We may presume,” says he, “that the law makers had in mind the distinction between medicine and drink, and when they forbade the sale of a particular kind of “drink” or “liquor,” they did not intend to prohibit the sale of medicine necessary to restore life, and restore the sick to health, even though the medicine should happen to be composed of the same ingredients as the drink.”
¶8I think it may be said to be a common-law rule of construction of criminal statutes, that when the act done is not malum in se, but is proper and necessary in itself, and is not within the mischief designed to be remedied by the statute, it is not criminal. This rule of construction applies to all criminal statutes, general in their terms. Bishop, §230, sums up the result of the authorities in the simple statement “ that whenever the thing done comes not within the mischief which evidently the statute was intended to suppress, though it comes within its words, the person doing the thing i s not punishable. The case must come not only within the words of the statute, but also within its reason and spirit and the mischief it was intended to remedy,” §232; and for this he cites a long list of authorities. This seems to me the well settled and just rule of construction of statutes, and to which they must bend.
¶9This common-law rule of construction gives full force and effect to the spirit of the statute, and controls the letter, and keeps it within the mischief to be remedied. “There is,” *628says Bishop, “ in perhaps all cases of statutory crime a greater or less mingling of common-law principles with the statutory words. Indeed, there is no place where the principles of the common law prevail, where statutory crime, pure and simple, and as an existence entirely separate from the common law, is known. The statute may be the strong swimmer that boasts of being moved by no current, and of possessing all force in its own arm; still, around it in all its extent, and in all its parts, and constantly bearing it up, is the ever present arm of the common law.”
¶10I think the rule that “ ignorance of the law excuseth not” has no application to this case, as it had to the cases of State v. Dickerson, 1 Hay., 468; State v. Boyett, 10 Ired., 336; State v. Presnell, 12 Ired., 103; State v. Hart, 6 Jones, 309.
¶11It is conceded that the defendant was bound to know the law, and that the letter of the statute was broken; but if the sale was made, not as an “intoxicating drink or liquor,’’ but in good faith as a medicine, prescribed by a physician as necessary to cure the sick, then -it was not within the mischief and contemplation of the statute, and therefore not criminal and within its penalties; and for this I think the cases of State v. Wrayand State v. Gilbertare conclusive authorities.
¶12It appearing in this case t.hat there was no purpose to violate the spirit of the law, for the reasons given I do not think the defendant ought to be convicted.