Anthony v. Commonwealth

• Decision Date: 11 June 1925
• Citation: 128 S.E. 633
• Parties: ANTHONY. v. COMMONWEALTH.
• Court: Virginia Supreme Court

128 S.E. 633

ANTHONY.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 11, 1925.

Error to Circuit Court, Louisa County.

Obey Anthony was convicted under indictment for unlawful possession of a still and appliances and substances capable of being used in the manufacture of ardent spirits, and he brings error. Affirmed.

Gordon & Gordon and W. E. Bibb, all of Louisa, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

WEST, J. 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. 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, c. 345, Acts 1922, now sectioa 41 1/2, c. 407, Acts 1924), violates the provisions of the Virginia Constitution and the due process and equal protection clause of the Fourteenth Amendment to 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 proceed-ings or inquiry before, the courts or other tribunals. * * *"

Section 64. "In all the cases enumerated in the last section * * * the General Assembly shall enact general laws. Any general law shall be subject to amendment or repeal, but the amendment or partial repeal thereof shall not operate directly or indirectly to enact, and shall not have the effect of the enactment of a special, private, or local law."

The rules which are observed by this court in passing upon the constitutionality of a state statute are well established. The General Assembly is vested with absolute power to pass any law not in conflict with the state or federal Constitution. Every act is presumed to be constitutional and will be held valid, unless it plainly violates some provision of the Constitution. A reasonable doubt as to the constitutionality of the act must be solved in favor of its validity. Whether the legislation is wise and proper is not for the court, but for the Legislature to determine. Ex parte Settle, 114 Va. 715, 77 S. E. 496; Pine & Scott v. Commonwealth, 121 Va. 822, 93 S. E. 652; Strawberry, etc., v. Starbuck, 124 Va. 77, 97 S. E. 362.

There is no merit in the contention that the clause of the Prohibition Law under consideration violates section 8 of the Virginia Constitution, because it makes available to the commonwealth hearsay evidence, and denies to the accused the right to be confronted by and to cross-examine the witnesses whose testimony is used against him.

It is substantive evidence, to wit, the general reputation of the accused as a violator of the prohibition laws and not hearsay evidence that is involved. 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. The accused has the same opportunity in the one case that the commonwealth has in the other to introduce evidence of his general reputation in rebuttal. Besides, he can cross-examine the witnesses to test their opportunity for knowledge of his reputation. The statute 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.

The contention that the clause in question is repugnant to sections 63 and 64 of the Virginia Constitution, supra, is likewise without merit.

It is clear that the statute involved here is not a private or local law, or a special act, within the meaning of these sections of the Constitution. True, it applies only to a class namely, violators of the prohibition laws, but 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. Being a general act, the Legislature's authority to thus change the common law rules of evidence is beyond question. Strawberry, etc., v. Starbuck, 124 Va. 79, 97 S. E. 362.

The case of Ex parte Settle, 114 Va. 715, 77 S. E. 496, involved the validity of a statute which it was claimed violated section 63 of the Constitution of Virginia, prohibiting the enactment of any local, special, or private law. Keith, P., speaking for the court, said:

" 'It is insisted on behalf of the petitioner that the act is unconstitutional because it is special or class legislation prohibited by section 63 of the Constitution of this state, in that it applies only to the county of Alexandria; that it is repugnant to section 52 of the Constitution, which provides, among other things, that 'no law shall be revived or amended with reference to its title, but the act revived or the section amended shall be re-enacted and published at length'; and third, that it is repugnant to section 87 of the Constitution, which provides that 'the Judiciary Department shall consist of a Supreme Court of Appeals, circuit courts, city courts, and such other courts as are hereinafter authorized.'

"It is true that the act applies only to the county of Alexandria, that being the only county in the state which has a population of three hundred or more to the square mile. But the fact that a law applies only to certain territorial districts does not render it unconstitutional, provided it applies to all districts and all persons who are similarly situated, and to all parts of the state where like conditions exist. Laws may be made to apply to a class only, and that class may be in point of fact a small one, provided the classification itself be a reasonable and not an arbitrary one, and the law be made to apply to all of the persons belonging to the class without distinction."

In Martin's Executors v. Commonwealth, 126 Va. 612, 102 S. E. 77, 80, 724, the law is stated thus:

"Constitutional prohibitions against special legislation do not prohibit classification. A general law in its simplest form embraces all persons and places within the state, but varying circumstances often render it impossible to apply the same rule everywhere and to everybody. But the classification must not be purely arbitrary. It must be natural and reasonable, and appropriate to the occasion. There must be some such difference in the situation of the subjects of the different classes as to reasonably justify some variety of rule in respect thereto. Though an act be general in form, if it be special in purpose and effect, it violates the spirit of the constitutional prohibition. An evasion of the prohibition 'by dressing up special laws in the garb and guise of statutes' will not be permitted. 1 Dill, on Mun. Corp. (5th Ed.) § 147 et seq.; 1 Lewis' Sutherland on Stat. Construction (2d Ed.) § 200. But the necessity for and the reasonableness of classification are primarily questions for the Legis-lature. If any state of facts can be reasonably conceived, that would sustain it, that state of facts at the time the law was enacted must be assumed. 1 Dill. Mun. Corp. (5th Ed.) § 146; Polglaise v. Commonwealth, 114 Va. 850, 865, 76 S. E. 897."

The same or similar principles are laid down in Commonwealth v. United Cigarette Machine Co., 120 Va. 835, 92 S. E. 901; Commonwealth v. The Ferries Co., 120 Va. 827, 92 S. E. 804; Strawberry v. Starbuck, supra.

The Kentucky Prohibition Law, in section 15 of chapter 33 of the Acts of the Kentucky General Assembly, 1922, provides as follows:

"In any prosecution or proceeding for any violation of this act, the general reputation of (he defendant or defendants for moonshining, bootlegging, or being engaged in the illicit manufacture of, or trade in, intoxicating liquors, shall be admissible in evidence against said defendant or defendants."

The validity of this statute was sustained by the Court of Appeals of Kentucky in Keith v. Commonwealth, 197 Ky. 362, 247 S. W. 42, 43.

The further contention that the act in Question is repugnant to the due process and equal protection clause of the Fourteenth Amendment to the Constitution of the United States is also without merit.

What is due process of law is not easily defined. General speaking, the "law in its regular course of administration through courts of justice is due process."

Equal protection of the laws 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...