Anthony v. Commonwealth

• Citation: 142 Va. 577
• Court: Supreme Court of Virginia
• Decision Date: 11 June 1925
• Parties: OBEY ANTHONY v. COMMONWEALTH.

Page 577

142 Va. 577

OBEY ANTHONY v. COMMONWEALTH.

Supreme Court of Virginia, Wytheville.

June 11, 1925.

Argued before Judge Chichester took his seat.

1. INTOXICATING LIQUORS — General Reputation of Accused as Violator of the Prohibition Law — Constitutionality of the Provision. — Section 73, chapter 345, Acts of 1922, of the State prohibition law (section 41 1/2, chapter 407, Acts 1924) does not violate the Constitution of Virginia nor the due process and equal protection clause of the fourteenth amendment to the Constitution of the United States.

2. CONSTITUTIONAL LAW — Power of the Legislature. — The General Assembly is vested with absolute power to pass any law not in conflict with the State or Federal Constitution.

3. CONSTITUTIONAL LAW — Presumption in Favor of Constitutionality. — Every act is presumed to be constitutional and will be held valid unless it plainly violates some provision of the Constitution.

4. CONSTITUTIONAL LAW — Reasonable Doubt of Constitutionality. — A reasonable doubt as to the constitutionality of an act must be solved in favor of its validity.

5. CONSTITUTIONAL LAW — Statutes — Propriety and Wisdom of a Statute. — Whether legislation is wise and proper is not for the court, but for the legislature to determine.

6. INTOXICATING LIQUORS — Reputation of Accused — Section 8 of the Constitution of Virginia. — Section 8 of the Constitution of 1902, providing that accused has a right to demand to be confronted with the accusers and witnesses is not violated by the provision of the prohibition act admitting evidence of the reputation of accused as a violator of the prohibition laws. Such evidence is not hearsay but substantive evidence. The statute simply changes the rules of evidence so that the Commonwealth may put in evidence the general reputation of the accused, in prohibition cases, just as the accused himself is permitted to do in all prosecutions against him.

7. INTOXICATING LIQUORS — Reputation of Accused — Conviction not Based on Reputation Alone. — The provision of the prohibition act permitting evidence of the general reputation of the accused as a violator of the prohibition laws does not authorize a conviction, without any evidence of the commission of the offense charged, upon proof that the accused has the reputation of being a violator of the prohibition laws, but simply makes such evidence relevant and admissible, to be considered along with the other evidence in the case.

8. INTOXICATING LIQUORS — Reputation of Accused as Violator of the Prohibition Laws — Local or Special Laws. — Section 73, chapter 345, Acts 1922 (section 41 1/2, chapter 407, Acts 1924), providing for the admission of evidence as to the general reputation of accused as a violator of the prohibition laws is not a private or local law, or a special act, within the meaning of sections 63 and 64 of the Constitution of 1902. Although it applies only to a class, namely, violators of the prohibition laws, yet the classification is reasonable and not arbitrary, and includes all persons throughout the State who are similarly situated. Such an act is not special, but general.

9. INTOXICATING LIQUORS — Due Process of Law — Equal Protection of the Law — Reputation of Accused as Violator of the Prohibition Acts. — Section 73, of chapter 345, of Acts 1922 (section 41 1/2 of chapter 407, Acts 1924), providing that it shall be competent in a prosecution for any offense against the prohibition laws to prove the general reputation of the defendant as a violator of the prohibition laws, is not repugnant to the due process and equal protection clause of the fourteenth amendment to the Constitution of the United States.

10. DUE PROCESS OF LAW — Definition. — What is due process of law is not easily defined. Generally speaking, the "law in its regular course of administration through courts of justice is due process."

11. CONSTITUTIONAL LAW — Equal Protection of the Law — Evidence. — Equal protection of the law does not guarantee to all persons in the United States, or in a single State, the benefits of the same laws and the same remedies. Every legislature may, subject to constitutional limitations, prescribe what evidence shall be received in the courts of its own jurisdiction.

12. STATUTES — Classification — Fourteenth Amendment. — The fourteenth amendment to the Constitution of the United States does not forbid the passage by the legislature of a law which applies to a class only, provided the classification be reasonable and not arbitrary, and applies alike to all persons similarly situated. Legislation may be limited either in the objects to which it is directed, or by the territory within which it is to operate. Whether the classification is reasonable is a question primarily for the legislature. It is presumed to be necessary and reasonable, and the courts will not substitute their judgment for that of the legislature, unless it is clear that the legislature has not made the classification in good faith.

13. REASONABLE DOUBT — Definition — Instructions. — In the instant case the court instructed the jury that "a doubt to justify an acquittal must be a reasonable doubt. It must not be a doubt that is merely chimerical or conjectural, it must be based upon the evidence, or lack of evidence, or that is suggested by the evidence. It must be a doubt of material fact or facts necessary for the jury to believe to find a verdict of conviction and not of immaterial and nonessential circumstances. If, after an impartial consideration of all the evidence in the case, you have an abiding conviction of the truth of the charge you are satisfied beyond all reasonable doubt. The jury must not go beyond the evidence to hunt up doubts, nor, on the other hand, must the jury go beyond the evidence to hunt up inference of guilt."

Held: That substantially the same instruction was given and approved in Horton's Case, 99 Va. 855, 38 S.E. 184. And besides, in the instant case, the court, at the request of the accused, gave at least three other instructions on reasonable doubt.

14. CRIMINAL LAW — Circumstantial Evidence — Instructions — Reasonable Theory of Innocence. — In the instant case the accused asked for an instruction to the effect that if there was any theory of the case upon which the accused might be innocent the jury must adopt such theory and acquit the accused. The trial court inserted the word "reasonable" before the word "theory."

Held: That this was a proper amendment of the instruction.

15. INTOXICATING LIQUORS — Conviction of Having Possession of Still, Appliances and Mash — Evidence Sufficient to Sustain Verdict. — In the instant case accused was convicted under an indictment charging that he unlawfully had in his possession a still and fermenters, and other appliances connected with a still and used in connection therewith, and also had in his possession mash and other substances capable of being used in the manufacture of ardent spirits. It appeared from the evidence that the officers of the law found a still site and mash and lard cans concealed, some on the accused's premises and some just across accused's line; and there was other incriminating evidence together with testimony that the reputation of accused as a violator of the prohibition law was bad. Accused denied that he knew anything of the mash found on his place, and attempted to explain the other incriminating circumstances.

Held: That the credibility of witnesses and the weight of the testimony were questions for the jury and they having found the accused guilty, the verdict could not be disturbed.

Error to a judgment of the Circuit Court of Louisa county.

The opinion states the case.

Gordon & Gordon and W. E. Bibb, for the plaintiff in error.

John R. Saunders, Attorney-General, Leon M. Bazile, Assistant Attorney-General, and Lewis H. Machen, Assistant Attorney-General, for the Commonwealth.

WEST, J., delivered the opinion of the court.

Obey Anthony was convicted under an indictment charging that he unlawfully had in his possession a still and fermenters, and other appliances connected with a still and used in connection therewith, and also had in his possession mash and other substances capable of being used in the manufacture of ardent spirits, and sentenced to jail for three months and to pay a fine of $50.00. This writ of error is to that judgment.

The accused assigns as error the action of the court — (1) In permitting witnesses to testify that he had the reputation of being a violator of the prohibition laws; (2) in giving instructions A and B for the Commonwealth; (3), in amending instruction No. 1 offered by the accused; and (4), in refusing to set aside the verdict of the jury as contrary to the law and the evidence and unsupported by the evidence.

The accused claims that section 73 of the State prohibition law (section 73, chapter 345, Acts 1922, now section 41 1/2, chapter 407, Acts 1924), violates the provisions of the Virginia Constitution and the due process and equal protection clause of the fourteenth amendment of the Constitution of the United States.

Section 73 of the prohibition law reads as follows: "It shall be competent in a prosecution for any offense against the prohibition laws of the State to prove the general reputation of the defendant as a violator of the prohibition laws."

Sections 8, 63 and 64 of the Constitution of Virginia read in part, as follows:

Section 8. "* * * That in all criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor and to a speedy trial by an impartial jury * * *."

Section 63. "The General Assembly shall not enact any local, special or private law in the following cases * * * 3. Regulating the practice in or the jurisdiction of, or changing the rules of evidence in any judicial proceedings or inquiry before the courts or other tribunals, * * *."

...