CHARLESTON* State v. Cain.
| Decision Date | 04 March 1875 |
| Citation | 8 W.Va. 720 |
| Court | West Virginia Supreme Court |
| Parties | CHARLESTON*State v. Cain. |
John Cain, in these words, to-wit:
' State of West Virginia, Wood county, to-wit:
In the circuit court of said county. The jurors of the State of West Virginia, in and for the body of the county of Wood, and now attending the said court, upon their oaths present, that John Cain, on the first day of December, A. D. one thousand eight hundred and seventy three, in the said: county, unlawfully did sell and furnish to Michael Toole, spirituous liquors, wine, porter, ale, beer, and drinks of like nature, on Sunday, contrary to the form of the statute, in such cases, made and provided, and against the peace and dignity of the State." Held. That said indictment is not good, after verdict, upon a motion in arrest of judgment, under any statute of West Virginia.
provision of section thirty of the sixth article of the constitution, and it is not essential that they even refer to the acts, or section, which, by implication, they amend".
ture, of 1872, in connection with section seven of said chapter, so far as it prescribes the penalty for violating said first section of the said act of the Legislature, and so far as it forbids the sale, without a license, of intoxicating liquors to be drank in, upon, or about, the building or premises where sold, or to be drank in any adjoining room, building or premises, or other place of public resort connected with said building, that far and to that extent operates a repeal of the provisions of said first section of chapter thirty-two of the Code, of 1808, and no further; and that as to all sales of spirituous liquors or other liquors or drinks whether by wholesale or retail, which are forbidden to he made by the first
section of said chapter thirty-two, without a license for the pur-
poses or uses not specified in the first section of said chapter ninetynine of the acts of the Legislature of 1872-3, the first section of said chapter thirty-two of the Code, still remains in force.
Writ of error operating as a supersedeas to a judgment of the circuit court of Wood county, rendered on the 3d day of July 1874, in a cause therein then pending on an indictment against John Cain. The cause reaches this Court by petition of the respondent, Cain.
The case is stated in the opinion of the Court.
Walter S. Sands for the appellant.
Attorney-General Mathews for the State.
Haymond, President.
On the.1st day of December 1873, the grand jury of the circuit court of the county of Wood found an indictment against the defendant (John Cain), which is in these words, viz:
Afterwards, at the June term, 1874, of said court, the defendant appeared and filed his plea of not guilty to the indictment, upon which plea issue was duly joined,
On the 8th day of June 1874, a jury was duly empaneled and sworn to try the issue joined, &c, in said case, and on the next day the jury rendered their verdict of guilty against the defendant, and fixed his fine at fiftv dollars.
On the 3d day of July, 1874, and before judgment was, "rendered upon the verdict, the defendant, by his attorney, moved the court in arrest of judgment upon said' verdict upon the ground of defects in the indictment, and other reasons hereinafter stated, but the court overruled the motion and rendered judgment against the defendant, for the fine and costs. The defendant excepted to the judgment of the court in overruling his motion in arrest of judgment. The bill of exception filed in the cause states the grounds upon which defendant asked the court to arrest judgment upon the verdict as follows, viz:
First. Because the indictment does not charge an offense against any statute of the State in force at the time the same was found, or at the time the alleged offense therein is charged or proved to have been committed, it not being charged in the indictment that the defendant sold the liquor therein mentioned without a State license therefor at the time as required by sections first and second of chapter thirty-two of the code of West Virginia, or that the defendant had violated any of the conditions of a bond required of persons procuring licenses by section twelve of chapter thirty-two, of the code of West Virginia.
Second. Because the provisions of chapter ninety-nine of the acts of the Legislature of West Virginia, passed April 4, 1873, entitled "An act to provide against the evils resulting from the sale of intoxicating liquors in the State of West Virginia," operate as a repeal by implication of so much of chapter thirty-two of the code of West Virginia as pertains to the sale of intoxicating liquors, and there was, therefore, no statute in force at the time of the commission of the offense as laid in the indictment, or at the time the alleged offense charged in the indictment was proved to have been committed, prohibiting or punishing the sale of intoxicating liquors on Sunday.
Third. Because the indictment does not set out the par ticular place in the county of Wood where the saletherein charged was committed.
This case is now before us upon a writ of error obtained by the defendant from this Court. The evidence or facts proved are not certified in any form, and do not appear in the record, and we cannot see or know what was proved at the trial. There was no demurrer to or motion made to quash the indictment. The question now to be determined by this Court is, does the indictment charge the defendant, Cain, with an indictable offense, or in other words do the charges contained in the indictment amount, in a legal sense, to a violation ot any statute of West Virginia. Owing to the confused state of the legislation upon the subject of selling "spirituous liquors," &c, and "intoxicating liquors," without a license at the time the indictment was found, and for some time before, the question to be determined is very difficult of satisfactory solution. That the question is of the deepest interest and importance, is apparent. In order to arrive at a correct conclusion of the question before us, it is indispensable that the constitution of the State and the legislation bearing upon the-subject shall be brought in review and considered.
The thirtieth section of the sixth article of the constitution of the State provides that "no law shall be revised, or amended, by reference to its title only, but the law revised, or section amended shall be inserted at large in the new act."
The first section of chapter thirty-two of the Code of 1868 was in force at the adoption of the Constitution and at the finding of the indictment, unless it was repealed by legislative enactment after the adoption of the Constitution and before the finding of the indictment, and provides that "No person without a State license therefor shall keep a hotel or tavern, or furnish drinks or refreshments at a public theatre, or sell, offer, or expose for sale, at wholesale or retail, spirituous liquors, wine, porter, ale, or beer, or any drink of a like nature; and
The third section of same chapter provides that any person violating the said first section shall forfeit not less than ten nor more than one hundred dollars.
The fourth section of the same chapter provides that said chapter shall not be construed to require any person having license to sell spirituous liquors or wine at retail to obtain another license to sell porter, ale, or beer, or any drink of like nature, at the same place; or to prohibit a druggist from selling without license, alcohol, spirituous liquors, or wine, in good faith for medical or manufacturing purposes. And in any prosecution against a druggist for selling alcohol, spirituous liquors, or wine, without a license therefor, if the sale be proved, it shall be presumed that such sale was in violation of this section unless the contrary be shown.
The seventh section of the same chapter provides that "The State license mentioned in the first section shall be issued only when authorized by the board of supervisors of the county, except that when the act, occupation, or business for which such State license is necessary is to be done or carried on in a city, village or town, the license shall be issued only when authorized under the charter of said city, village, or town, by the council thereof."
The twelfth section of same chapter provides, ...
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