Arrington v. Commonwealth

• Decision Date: 20 November 1890
• Citation: 12 S.E. 224,87 Va. 96
• Parties: Arrington. v. Commonwealth.
• Court: Virginia Supreme Court

87 Va. 96

12 S.E. 224

Arrington.

v.Commonwealth.

Supreme Court of Appeals of Virginia.

Nov. 20, 1890.

Intoxicating Liquors—Sale without License-Former Jeopardy.

1. An indictment drawn under Pub. Acts Va. 1889-90, p. 242, § 1, which prohibits the sale, "by sample, representation, or otherwise, " of intoxicating liquors, "either by wholesale, retail, or to be drunk at the place where sold, or in any other way, without a license, " must definitely state the place at which the alleged sale was made, and also whether the sale was by wholesale, retail, or to be drunk on the premises, so that defendant may know for what he is prosecuted, and thereby be enabled to prepare his defense.

2. But, as time is not of the essence of the offense, a general allegation as to the time of the sale is sufficient, under Code Va. § 3999, which provides that an indictment shall not be rendered invalid for stating imperfectly the time at which the offense was committed, where time is not of the essence of the offense.

3. Neither need the indictment state that the alleged sale was "by sample, representation, or otherwise, " as this is not an essential ingredient of the offense.

4. A prosecution for selling liquor on Sunday, in violation of Code Va. § 3804, is no bar to a subsequent prosecution for a sale of the same liquor without a license, in violation of Pub. Acts Va. 1889-90, p. 242, § 1, as the commonwealth, in order to convict, must make proof of a different state of facts under the first statute from that under the second.

Error to corporation court of Alexandria.

J. M. Johnson, for plaintiff in error.

The Attorney General, for the Commonwealth.

Lewis, P. The plaintiff in error was indicted in the corporation court of the city of Alexandria, for that "on a certain day, between the 13th day of September, 1889, and the 12th day of September, 1890, in the said city, she did unlawfully sell wine, ardent spirits, and malt liquors, without having first obtained a license therefor, required by law." The indictment was drawn under the statute which provides that no person shall, within the limits of this state, sell or offer to sell, by sample or representation or otherwise, wine, ardent spirits, malt liquor, or any mixture thereof, either by wholesale, retail, or to be drunk at the place where sold, or in any other way, without first having obtained a license therefor. Pub. Actsl889-90, p. 242, § 1. The defendant demurred to the indictment, but the demurrer was overruled. She thereupon pleadednotguilty, and also filed a special plea of former conviction, to which the commonwealth replied generally. And the case having been submitted to a jury, she was found guilty, and afterwards sentenced, in accordance with the verdict, to pay a fine of $100.

1. The first point made is that the de-murrer to the indictment ought to have been sustained; and this position is well taken. The indictment is bad—First, because it does not state any definite place in the city at which the alleged sale was made; and, secondly, because it does not state in what way the sale was made, whether by wholesale or retail, or whether the liquor was sold to be drunk at the place where sold or otherwise. Head's Case, 11 Grat. 819; Boyle's Case, 14 Grat. 674; Young's Case, 15 Grat. 664. It was held in Head's Case that, in an indictment lor selling liquor by retail, the defendant should be apprised of the place alleged, so that he may be prepared with proof, if any he have, to show that the place of sale and that of drinking are not the same. He may be licensed, said the court, to sell at one place, within the county, and relying on his license, and his consciousness of having sold at no other place, would go confidently to trial; yet upon the trial, under the general charge of selling in the county, proof may be offered to show a sale at any place within the county. This proof he could not anticipate, yet, if he had known it, he might have prepared himself to repel it by testimony. And the same rule applies to an indictment for selling liquor by wholesale or otherwise, inasmuch as, by section 549 of the Code, it is provided that a license to sell liquor, unless otherwise expressly authorized, shall designate a specified house or other definite place at which the business is to be carried on. And in Boyle's Case it was held that the indictment must state the mode in which the sale was made, as inference can never supply a total want of averment in regard to an essential part of an offense. This is merely stating in different form the elementary principle of criminal pleading laid down in Head's Case, namely, that an indictment must always allege the offense with such fullness and precision that the defendant may know for what he is prosecuted, and thereby be enabled to prepare his defense; and, further, that the conviction or acquittal may be pleaded in bar of any future prosecution for the same offense; a rule not affected by the statute, now brought into section 4011 of the Code, which provides that "no exception shall be allowed for any defect or want of form In any presentment, indictment, or information, " for an offense against the revenue laws, but that "the court shall give judgment thereon according to the very right of the case." Young's Case, supra. The indictment in the present case is not in conformity with this rule. It does not state with the requisite precision the place at which the alleged sale was made, nor does it set out the offense with such certainty as to enable the defendant to intelligently prepare her defense. It simply charges in general terms e sale without a license in the city of Alexandria, thus omitting to state an essential ingredient of any offense described in the statute. To constitute the offense of selling liquor without a license, under the section of the statute upon which the indictment is drawn, the sale must be either by wholesale, or retail, or to be drunk where sold, for although the statute adds the words, "or in any other way, " there is in reality no other way known to the law in which a licensed sale of liquor can be made, and the rule is a fundamental...