Cherry v. Commonwealth

• Decision Date: 31 January 1884
• Citation: 78 Va. 375
• Parties: CHERRY v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

78 Va. 375

CHERRY v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

January 31, 1884

Error to judgment of circuit court of Norfolk county refusing a writ of error and supersedeas to judgment of county court of Norfolk county in proceedings had against T. L Cherry, under Acts 1874-5, chapter 206, section 106, page 244, on a rule issued on the motion of the attorney for the Commonwealth against him to show cause why his license to sell liquor should not be revoked for charges therein contained.

The opinion of the court states the case.

Wm. H. Stewart and Edwards & Harper, for the plaintiff in error.

Attorney-General F. S. Blair, for the Commonwealth.

1st. The rule was sufficiently certain, and a similar rule in Davis v. The Commonwealth, 75 Va. 944, was held sufficient upon a motion to quash.

2d. The proceeding by this rule was a criminal proceeding, and therefore the said Cherry was an incompetent witness in his own behalf.

3d. The evidence, and not the facts, is certified, and therefore all the evidence of the appellant must be excluded, as on a demurrer to evidence.

The proof in support of the rule is conclusive to show that the plaintiff in error had violated the law by selling liquor on Sunday and to minors.

OPINION

LEWIS P.

This proceeding was conducted under the provisions of section 106, ch. 206 of the Acts of Assembly of 1874-75, p. 244, which is as follows: " Upon the motion of the attorney for the Commonwealth, for the county, city or town, or of any other person, after ten days' notice to any person or firm licensed to sell liquors or any other thing, the granting of whose license was based upon the certificate of a court, the court which granted the certificate may revoke the said license. When the license of any person is revoked as aforesaid, the court shall give judgment against the said person for the costs of the proceeding, including a fee of five dollars to the attorney for the Commonwealth." The proceeding was begun, by the entry of the following order, on the 4th day of September, 1883: " It having been brought to the attention of the judge of this court that T. L. Cherry, John M. Johnson and John Foreman, who have been granted a retail liquor and bar-room license at the village of Deep Creek, in this county, have repeatedly within the twelve months last preceding, at said village aforesaid, violated the statute regulating and governing the license and sale of ardent spirits, beer, wine, cider, malt liquors, and mixtures thereof, in this Commonwealth, in this, to-wit: That they, and each of them, have on Sundays opened their place of business, and then and there sold ardent spirits, malt liquors, wines, and mixtures thereof; that they, and each of them have, on Sunday and other days of the week, sold ardent spirts, wines, malt liquors and mixtures thereof, to minors, without the consent of the parents and guardians of said minors; that they, and each of them, have kept, and now do keep, disorderly houses, to the disturbance of the peace and quiet, and to the great annoyance of the good people of Virginia at said village aforesaid. It is ordered by this court, that T. L. Cherry, John M. Johnson and John Foreman, and each of them, be summoned to appear before this court, on Monday, the 24th day of September, 1883, that being the seventh day of the September term of this court, to then and there show cause, if any they can, why their said license, as retail liquor dealers and bar-room keepers, should not be revoked."

A copy of this order having been duly served on Cherry, the plaintiff in error here, he appeared and moved the court to quash the summons, " because the same did not specially set forth any offence committed by the defendant, but was too general, vague, and indefinite." The court sustained the motion as to the charge of selling liquor to minors, and overruled it as to the other two charges therein contained, to which ruling the defendant excepted; and thereupon, the testimony on both sides having been heard, the judgment complained of was rendered, which is as follows: " The court having fully considered the evidence and arguments of counsel in this case, and it appearing that the said T. L. Cherry had, since the 1st day of May, 1883, kept a disorderly house, it is ordered that his licenses aforesaid be revoked, and that he do pay the costs of this prosecution." The defendant then applied to the judge of the circuit court of Norfolk county, in vacation, for a writ of error, which was refused, the judge making the following endorsement on the petition: " This application is refused, at the suggestion of counsel, for want of time to make proper examination, by reason of official engagements. (Signed) George Blow, Judge, & c." Thereupon a writ of error and supersedeas was awarded by one of the judges of this court.

Three errors are assigned in the petition, based upon bills of exceptions, which appear in the record:

1st. The first is that the county court erred in refusing to quash the summons on the motion of the defendant. The order of the court, a copy of which was served upon the defendant, has already been set forth at length, and with the general charge relating to the sale of liquor to minors stricken out, which was done, it is sufficiently full and precise to satisfy the requirements of the statute under which the proceeding was conducted. It was manifestly not the intention of the legislature to require in such proceedings the application of the strict and technical rules which apply to indictments and other forms of accusation in criminal prosecutions. The statute requires at least ten days' notice to be given before a license can be revoked, but it does not, in terms, provide that the grounds upon which the revocation of the license is, or will be, asked for shall be set forth in the notice or otherwise. It is proper, however, that the person or firm whose license is sought to be revoked should be apprised with reasonable certainty of the charge or charges to be preferred, in order that a fair opportunity may be afforded to prepare and make defence. This was afforded by the notice in question, and the motion to quash was properly overruled.

2. At the trial the defendant, Cherry, offered to testify as a witness in his own behalf; but, on the motion of the attorney for the Commonwealth, the court refused to admit his testimony on the ground that he was not a competent witness; and this ruling of the court is the subject of the second assignment of error.

Whether he was or was not a competent witness depends upon the character of the proceeding against him. If in its nature it was a civil proceeding, it is conceded that, under the statute of this State allowing parties to testify in their own behalf, he was a competent witness; and on the other hand, if it was a criminal proceeding, that he was not a competent witness.

We think it properly belongs to the former class, and that he was, therefore, competent to testify. It is difficult to see how it can be otherwise regarded. Its object and the effect of the judgment was to revoke the defendant's license, not as a punishment for an offence committed, but for the preservation of the peace and good order of the community in which his business was conducted. It was not competent for the court to have rendered a judgment against him imposing punishment of any kind, nor was it attempted. It is true the proceeding was begun on the motion of the attorney for the Commonwealth, the officer whose duty it is to prosecute all offences against the authority of the State committed within his county; but it was just as competent for " any other person," by the express terms of the statute, to have moved in the matter, and with the same effect. In such a proceeding the defendant is not entitled to a trial by jury; nor is it a bar to the proceeding that it is founded upon some act or offence for which he has been previously convicted in a court of competent jurisdiction. This was decided in Davis v. The Commonwealth, 75 Va. 944, where the court said: " The revocation of the license is not a punishment for any specific offence, but is simply the withdrawal of a privilege which the State grants to carry on legitimate business. It can no more be said to be a criminal prosecution than would be a rule against an attorney to show cause why his name should not be stricken from the roll of attorneys for some act of malpractice for which he had been or was liable to be indicted and punished. In short, there is strictly no element of a criminal prosecution about it, and the county court erred in not permitting the defendant to testify.

This conclusion renders it unnecessary to consider the question raised by the third and last bill of exception as to the sufficiency of the evidence to support the judgment, as, for the error indicated, the judgment must be reversed, and the...