Burton v. Commonwealth
| Citation | 122 Va. 847,94 S.E. 923 |
| Parties | BURTON . v. COMMONWEALTH. |
| Decision Date | 24 January 1918 |
| Court | Supreme Court of Virginia |
Error to Circuit Court, Northampton County.
Arthur Burton was convicted of a violation of the prohibition law, and he brings error. Reversed.
Stanley Scott and Louis S. Sacks, both of Eastville, for plaintiff in error.
The Attorney General, for the Commonwealth.
The accused was indicted under section 39 of the Prohibition Act (Acts 1916, p. 215) for personally and at one time bringing into the state, and also for personally and at one time transporting from one point to another within the state, ardent spirits in excess of the quantity of one quart allowed by that section of such act.
It will be noted that neither count of the indictment contains any allegation to the ef fect that the liquor in question was "for use in this state."
There was a demurrer to the indictment, and to each count thereof, which was overruled by the trial court. Of the questions raised by the grounds of demurrer, all except three have been recently decided by the opinions of this court in other cases, and so need no further consideration by us. The three questions referred to which should be dealt with by us in the instant case will be considered and passed upon in their order as stated below.
1. Is the indictment insufficient because of its lack of allegation that the liquor in question was "for use in this state"?
Both counts of the indictment were under section 39 of the statute, as shown by the statutory language used in the indictment. It is true that the first part of this section couples with the language creating the offense of bringing liquor into this state (which is the subject of the first count of the indictment) the qualification that such bringing must be "for use in this state"; but the provision on this subject in the latter part of the same section makes it plain that such qualification is not made by the statute an essential ingredient of the offense. The latter provision is as follows:
"It shall be unlawful for-any person to bring into this state from any point without the state, whether in his personal baggage or otherwise, within a period of thirty days, more than one quart of ardent spirits. * * * "
As to the transportation within the state (which is the subject of the second count of the indictment), the language of section 39, which creates that offense, plainly does not make the qualification "for use in this state" an ingredient of that offense. That language is as follows:
"No person * * * shall * * *, transport from one point to another in this state * * * any ardent spirits."
t1] Therefore, under the rule on the subject, too well settled to need restatement here, neither as to the offense of the bringing of the liquor into this state, nor as to the transportation of it within the state, was the qualification that it must be "for use in this state" an essential ingredient of the offenses charged, and hence both of the counts were good without the allegation that the liquor In question was "for use in this state." Pine & Scott's Case, 121 Va. —, 93 S. E. 652; Whitlock's Case, 89 Va. 337, 15 S. E. 893; Benton's Case, 91 Va. 782, 793, 21 S. E. 495.
2. Is said section 39 of said act unconstitutional, in that it violates section 52 of the Constitution of Virginia, because the body of the act in regard to "transportation" of ardent spirits is broader than its title, in that the title is confined in its reference to "transportation" to "transportation for sale"?
It Is true that the title to the act in its
reference to transportation is confined to "transportation for sale, " but there are other objects of the statute than the prohibition of the transportation for sale, among which are the prohibition of the "use, " and "keeping for sale" of ardent spirits, "except as provided" therein, and the "sale" of ardent spirits, which are expressly embraced in the title of the statute. The title also expressly sets forth that one of the objects of the statute is "to provide for the enforcement of this act." The regulation of the bringing into this state and of transporting from one point to another within the state of ardent spirits...
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... ... opportunity to commit an offense and there is doubt as to ... which committed it, neither should be convicted, Burton ... v. Corn, 94 S.E. 923. Suspicion is no proof nor ... conjecture evidence upon which courts can act in determining ... rights of parties ... 301, 22 S.E. 528; ... State v. Elsham, 70 Iowa 531, 31 N.W. 66; State ... v. Brady (Iowa) 91 N.W. 801; McDowell v ... Commonwealth, 4 Ky. L. Rep. 353; Territory v ... Lermo, 8 N.M. 566, 46 P. 16; Struckman v ... State, 7 Tex. Ct. App. 581; Barr v. State, 10 ... Tex ... ...
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