Carter v. Commonwealth

• Citation: 181 Va. 306,24 S.E.2d 569
• Parties: CARTER et al. v. COMMONWEALTH.
• Decision Date: 08 March 1943
• Court: Supreme Court of Virginia

24 S.E.2d 569

181 Va. 306

CARTER et al.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 8, 1943.

Error to Circuit Court, Rappahannock County; J. R. H. Alexander, Judge.

John T. Carter and another were jointly convicted of unlawfully transporting whisky through Virginia, and they bring error.

Affirmed.

Before CAMPBELL, C. J., and HUD-GINS, GREGORY, BROWNING, EG-GLESTON, and SPRATLEY, JJ.

Weaver, Armstrong & Marshall, of Front Royal, and Perkins, Battle & Minor, of Charlottesville, for plaintiffs in error.

Abram P. Staples, Atty. Gen., and G. Stanley Clarke, Asst. Atty. Gen., for the Commonwealth.

SPRATLEY, Justice.

This is a companion case to Earl Dicker-son, W. O. Page, and one 1939 Ford Motor truck, etc., v. Commonwealth of Virginia, Sup., 24 S.E.2d 550, decided this day.

The evidence in the two cases is somewhat different, but the principal assignments of error are based upon the same grounds. This case, however, has certain additional assignments of error based upon the specific offenses alleged against the appellants.

John T. Carter and E. P. Macemore were on September 14, 1942, jointly convicted of unlawfully transporting whiskey within, into and through Virginia. The specific charges against them were that the bill of lading for their whiskey shipment showed that it was being transported to a person who did not have a legal right to receive it at the point of destination shown thereon, as required by section 44 of the regulations of the A. B. C. Board of Virginia; that the bill of lading did not specify the route to be travelled by their truck in Virginia, as required by section 42 of the regulations; and that the appellants had posted no bond.

The case was tried by the court without the intervention of a jury upon an agreed stipulation of facts. The facts may be briefly stated as follows:

On May 20, 1942, the appellants received from a wholesale liquor dealer in Dorsey, Maryland, a shipment of 168 gallons of whiskey consigned to R. M. Williard at Thomasville, North Carolina. The whiskey was loaded on a truck, and immediately driven into Virginia by the appellants. Carter and Macemore said they intended to transport it through Virginia into North Carolina. They were apprehended and arrested in Rappahannock County, Virginia. They produced a bill of lading showing the correct amount of whiskey contained in the shipment, and disclosing the consignee to be a residentof North Carolina. Under the laws of North Carolina, the consignee could not lawfully receive the whiskey at its destination. The hill of lading specified no route for the truck to follow while in Virginia.

The truck was registered in the name of Healton Miller, a resident of North Carolina, who had posted, on March 26, 1942, a bond as required by section 42 of the Regulations of the Virginia Alcoholic Beverage Control Board; but the Board had notified Miller on May 1, 1942, of the cancellation of the bond and demanded the return of the certificate issued thereon. The bond had been cancelled upon information that Miller had the reputation of being a bootlegger in North Carolina. There was no evidence that Miller had ever violated the laws of Virginia.

Virginia Code, 1942, (Michie) section 4675(5) and (49a) and section 44 of the Regulations of the Virginia Alcoholic Beverage Control Board have been set out in the companion case. Section 42 of the said regulations reads as follows:

"Section 42. The Transportation of Alcoholic Beverages as Defined in the Virginia Alcoholic Beverage Control Act, as Amended, Within, Into, or Through the State of Virginia in Quantities in Excess of One Gallon.

"Before any person shall transport any alcoholic beverages within, into, or through the State of Virginia, such person shall post with the Virginia Alcoholic Beverage Control Board a bond with approved surety, payable to the Commonwealth of Virginia, in the penalty of One Thousand Dollars, upon condition that such person will not unlawfully transport and/or deliver any alcoholic beverages within, into, or through the State of Virginia, and evidence that the required bond has been posted shall accompany the alcoholic beverages at all times during transportation.

"Provided, however, that no such bond shall be required of any person licensed under the Virginia Alcoholic Beverage Control Act, as amended, to sell alcoholic beverages when such alcoholic beverages are being transported in a vehicle belonging to the licensee.

"Provided further that no such bond shall be required of any person transporting wine and/or beer purchased from persons licensed under the provisions of the Virginia Alcoholic Beverage Control Act, as amended, or those alcoholic beverages which may be manufactured and sold without any license under the Virginia Alcoholic Beverage Control Act, as amended."

It is here contended that the Virginia Alcoholic Beverage Control Act is unconstitutional, in that (1) the legislature did not have the power to delegate to the Alcoholic Beverage Control Board the right to adopt regulations having the force and effect of law; (2) that the Board did not have the authority to adopt sections 42 and 44...