Cochean v. Commonwealth

• Decision Date: 15 November 1917
• Parties: COCHEAN . v. COMMONWEALTH.
• Court: Virginia Supreme Court

94 S.E. 329

(122 Va. 801)

COCHEAN .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 15, 1917.

Error to Circuit Court, Rockingham County.

Charles Cochran was convicted of receiving and accepting delivery from an express company of ardent spirits, in violation of Acts 1916, c. 146, § 40, and brings error." Affirmed.

The indictment against the accused (omitting the formal parts) contained the following charge against him, namely:

That he " * * * did heretofore, since the 1st day of November, 1916, to wit, on the 23d day of December, 1916, unlawfully receive and accept delivery of ardent spirits from the Southern Express Company, a corporation and common carrier, in this: That on the said 23d day of December, 1916, he, the said Charles Cochran, against the form of the statute, received and accepted delivery of one quart of whisky from the said Southern Express Company, at its office in the city of Harrisonburg, in the county aforesaid, having within a period of 30 days prior thereto, to wit, on November 29, 1916, received and accepted delivery of a certain other quart of whisky from the same carrier at the same place, both of the said deliveries being of whisky consigned to the said Charles Cochran and transported by the said Southern Express Company. * * *"

There was a demurrer to the indictment, which was overruled by the trial court, followed by a trial by jury. The verdict of the jury found the accused guilty as charged in the indictment, and fixed his punishment at a fine of $50 and costs and confinement for 30 days in the county jail, upon which sentence was pronounced and judgment of the trial court was entered accordingly.

The Evidence.

No evidence was introduced by the accused.

The only evidence in the case was that introduced by the commonwealth. Such evidence consisted of the testimony of the express company's agent, W. C. Gaither, and the express company's records and affidavits of the accused kept and made as required by statute.

The testimony of said agent and such records and affidavits (so far as material) are as follows:

"That he is the agent at Harrisonburg, Va., of the Southern Express Company, a common carrier, and was such agent at the time of the occurrences hereinbefore mentioned; the defendant Chas. Cochran, a colored man, on November 29, 1916, call«d at the office of the said Southern Express Company, in the city of Harrisonburg, and asked if there was a package of whisky there for him from Hagerstown, Md.; that, upon being advised that there was, Cochran receipted for the same by signing the company's record book, and then made the following affidavit, which was printed on back of express special liquor record, as follows: " 'State of Virginia, County of Rockingham.

" T, Chas. Cochran, being duly sworn, depose and say that I am the consignee of a certain shipment of ardent spirits as specified on the other side of this form, this day delivered to me by the Southern Express Company, from Hagerstown, Md.; that I am not a student or minor, and, if a female, I am the head of a family; that the ardent spirits so received by me were brought into the state on my written order, and that I have not, within the thirty days previous hereto, received any ardent spirits of any kind whatsoever, from any person or from any place whatsoever, in excess of the quantity allowed by the provisions of the act of the General Assembly of Virginia, approved March 10, 1916, or contrary to law, and that the ardent spirits so received by me are for my own use, at my own home, and that the said ardent spirits will not be used in violation of law.

" '[Signed] Chas. Cochran, Consignee.

" 'Sworn to and subscribed before me, this 29th day of November, 1916.

" '[Signedl W. C. Gaither, " 'Agent for Southern Express Company. " 'Southern Express Company (Incorporated). " 'Form 370—Va. Special Liquor Record.

" 'Received at Harrisonburg, Virginia, date November 29, 19—, affidavit No. 152.

" 'Consignee, Chas. Cochran.

" 'Kind of ardent spirits, whisky; amount, 1 qt.; weight, 4 lbs.

"'Waybill No. 688, date Nov. 27, 1916, from Hagerstown, Md.'

"paid the express charges, received the package, and departed with it.

"That on December 23, 1916, the said Cochran again appeared at the office and again asked if there was a package of whisky there for him from Hagerstown, Md., and, upon being advised that there was, he signed the express record book and made the following affidavit which is written on the back of the express liquor record, as follows:

"[Here followed affidavit precisely the same as the above affidavit, only it being dated as made December 23, 1916.]

" 'Special Liquor Record.

" 'Received at Harrisonburg, Va., date 12—22, 19—, affidavit No. 148.

" 'Consignee, Chas. Cochran.

" 'Kind of ardent spirits, whisky; amount, 1 quart; weight, 4 lbs.

'"Waybill No. 1570, date 12—21, 19—, from Hagerstown, Maryland.'

"paid the express charges and departed with the package.

"That on each of said occasions there was a quart of whisky for said Cochran at the express office, which was shipped from the city of Hagerstown, in the state of Maryland, to said Cochran, as consignee, at Harrisonburg, and that the same was transported by the Southern Express Company; that each of said packages was labeled 'One Quart of Whisky' and was a carton about 12 inches long by 4 inches wide, such cartons as are regularly used in the shipment of whisky."

On cross-examination the witness testified: "That he did not open the packages, or examine the contents of the packages, or either of them; that they were sealed when received, and he did not break the seals, and did not know from actual personal knowledge what the contents were. The packages were labeled 'Whisky' with large letters as the law required, and were carried by the company as whisky, one quart each, and Cochran inquired for whisky and receipted for it as whisky.":

Further Proceedings.

The accused objected to the admission in evidence of said affidavits, on the ground that the commonwealth had not proved the corpus delicti and that until such was proven it was improper to introduce any admissions of the accused; but their introduction in evidence was permitted by the trial court over such objection.

Instructions.

After all the testimony had been introduced the accused asked the court to give the following instructions', all of which were refused:

(1) "The court instructs the jury that the accused is presumed to be innocent."

(2) "The court instructs the jury that the burden is upon the commonwealth to prove beyond all reasonable doubt that the substance contained in the package delivered to the defendant was distilled spirits, and unless this has been done the jury must find the defendant not guilty."

(3) "The court instructs the jury that neither the express bill, the affidavit, nor the express records, nor all of them combined, are sufficient proof to establish the guilt of the defendant in this case, for the burden rests on the commonwealth to prove beyond all reasonable doubt that the contents of the packages received by the defendant was distilled spirits."

(4) "The court instructs the jury that the defendant under the law is entitled to receive, not oftener than once each calendar month, one quart of distilled liquor, and if the jury believe from the evidence that the defendant in the months of November and December, 1916, did receive but one quart of distilled liquor in each of said months, then the jury will find the defendant not guilty."

(5) "If the jury shall find the defendant not guilty, they will say so, and no more; if they find him guilty, they will say so, and ascertain his punishment, which shall be a fine of not less than $50.00, or confinement in jail, or both, in the discretion of the jury."

Upon the rendition of said verdict of the jury the accused moved the trial court to set same aside as contrary to the law and the evidence and grant him a new trial, which motion the court overruled and entered the judgment aforesaid.

The Material Facts.

Regarding the evidence in the case under the rule applicable in this court, the fol lowing facts, material in the case, must be taken as proved, namely:

That the accused received and accepted delivery from an express company of ardent spirits brought into the state from a point without the state in the quantity of two quarts between November 29th and December 29th, which would have been two quarts within one calendar month, to wit, one quart thereof on November 29 and another quart thereof on December 23, 1916.

Chas. A. Hammer, of Harrisonburg, for plaintiff in error.

The Attorney General, for the Commonwealth.

SIMS, J. (after stating the facts as above). The assignments of error raise the following questions, which will be considered and disposed of in their order as stated below:

1. Is the Act of Assembly 1916, p. 215 (under which the indictment in the.instant case was found), unconstitutional in so far as it prohibits the acceptance and receipt of ardent spirits, in that it violates section 52 of the Constitution of Virginia with respect to its title not being broad enough to admit of such enactment?

The title to the act, so far as pertinent to the above question, is as follows:

"An act to define ardent spirits and to prohibit the * * * use, sale, offering for sale, transportation for sale, keeping for sale, and giving away of ardent spirits, * * * except as provided herein; * * * to prescribe the force and effect of certain evidence and [in] prosecutions for violations of this act, * * * prescribing certain rules of 'evidence in certain prosecutions under this act; * * * to provide for the enforcement of this act. * * * "

The rule is well settled that the Constitution (section 52) is to be liberally construed In determining whether an act Is broader than Its title; that the act is to be upheld, if practicable; that the title of an act is sufficient, if the provisions of the act may be fairly regarded as in furtherance...