Devine v. Commonwealth

Decision Date16 January 1907
Citation60 S.E. 37,107 Va. 860
PartiesDEVINE. v. COMMONWEALTH.
CourtVirginia Supreme Court
1. Criminal Law — Evidence — Other Offenses.

Where, on a trial for selling intoxicating liquor without a license, the prosecution electa to prosecute for selling liquor to a person named, it cannot prosecute him for selling to other persons, nor prove that he made sales to others in aid of its proof that accused is guilty of selling to the person named.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 822-834; vol. 29, Intoxicating Liquors, § 286.]

2. Intoxicating Liquors — Offenses—Evidence.

Where, on a trial for the sale to a person named of intoxicating liquors without a license, the evidence showed that accused had been selling cider for about two years to the public generally, and that he had made a sale thereof to the person named, and the defense was that the cider was not intoxicating, evidence that accused sold cider to another, followed by proof of the effect it had on him, was not prejudicial, though it would have been better to have limited the evidence to the effect.

3. Same—Burden of Proof.

Under Acts 1904, p. 42, c. 20, § 141, prohibiting the sale of ardent liquors without obtaining a license, and providing that all preparations, except pure apple cider, which shall produce intoxication, shall be deemed ardent spirits, and Acts 1906. p. 307, c. 181, providing that pure apple cider shall be construed to mean the pure juice of the fruit, not containing more than 7 1/2 per cent. of alcohol, the commonwealth, on prosecuting one for selling ardent spirits, need not allege or prove that the liquor sold was not pure apple cider, and accused has the burden of proving that the cider sold was such as he had a right to sell without a license.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors, § 276.]

4. Same—Evidence—Sufficiency.

On a trial for the sale of intoxicating liquor without a license, evidence held not to show that cider sold by accused was intoxicating liquor, under Acts 1906, p. 307, c. 181, authorizing the sale without license of cider not containing more than 7 1/2 per cent. of alcohol.

Error to Circuit Court, Mecklenburg County.

J. L. Devine was convicted of selling liquor without a license, and brings error. Reversed and remanded.

W. E. Homes, for plaintiff in error.

The Attorney General, for the Commonwealth.

BUCHANAN, J. This a prosecution by warrant against the defendant for sellingardent spirits, without having obtained a license therefor, to Jack Wallace, Walter Willis, and to other persons unknown.

Upon the calling of the case in the circuit court, to which it had been appealed, the accused moved the court to require the prosecuting attorney to elect for which of the offenses charged in the warrant he would prosecute, and he elected to prosecute for the sale alleged to have been made to Jack Wallace.

The commonwealth introduced evidence that the accused, who was a merchant in Chase City, had been selling at his place of business to the public for about two years prior to November 1, 1906, cider known as "Manhattan" without a license; that in January and in August or September of that year he had sold cider to Jack Wallace; that the cider purchased by him in January, of which he drank a considerable quantity, made and kept him drunk for two days, but the latter purchase, which was less in quantity, did not make him drunk. It was also proved that country cider would produce intoxication if drank in large quantities.

The commonwealth then offered to prove by J. H. Wallace that the accused had sold him cider which made him drunk. The defendant objected to that evidence upon the ground that he was being tried upon the charge of selling to Jack Wallace alone, and that evidence to prove that he had sold to any other person or on any other occasion was inadmissible. The court overruled the objection and permitted the evidence to go to the jury to show that the article sold produced intoxication. This action of the court is assigned as error.

The commonwealth, having elected to prosecute the accused for selling to Jack Wallace, could not, under the warrant upon which he was being tried, prosecute him for selling to any other person; nor could it prove that he had made sales to other persons in aid of its proof that the accused was guilty of the offense for which he was being prosecuted. See Hatcher & Shaw's Case, 106 Va. 827, 55 S. E. 677; Cole v. Com., 5 Grat. 696; Walker v. Com., 1 Leigh, 574; 1 Bish. New Cr. Pr. §§ 1120-1124; 2 Whart. Cr. Ii. §§ 1524, 1525; Pearce v. State, 40 Ala. 720.

The court did not admit the evidence of the sale to J. H. Wallace for either of those objects, but solely for the purpose of showing that the cider sold to the witness, which the evidence tended to prove was the same kind of cider as that sold to Jack Wallace, would produce intoxication, and was, therefore, ardent spirits, within the meaning of the statute. The commonwealth had already shown, without objection so far as the record shows, that the accused had been selling cider known and called "Manhattan" for about two years to the public generally at his store. There was no question that the accused had made the sales testified to by Jack Wallace; but his defense was that the cider sold was such as he had the right to sell without a liquor dealer's license. The character of the cider sold, and not the fact of the sale to Jack Wallace, being the controverted question in the case, evidence by those who had drank it, showing what effect it had upon them, was clearly admissible; and while it would, perhaps, have been better to have asked such witnesses what effect it had upon them, without proving that the accused had sold it to them, it is clear, under the facts and circumstances of the case, that the evidence of the sale to J. H. Wallace did not prejudice the accused.

The next question to be considered is whether or not the court erred in instructing the jury that the burden of proof was on the accused to show that the cider sold by him to Jack Wallace was such as the accused had the right to sell without a liquor dealer's license.

By section 141 of an act of assembly approved February, 1904 (Acts Assem. 1904, pp. 42, 43, c. 20), it is provided that "no person, corporation, firm, partnership or association shall, within the limits of this state * * * sell or offer to sell by sample, representatives or otherwise, wine, ardent spirits, malt liquors, or any mixture thereof, alcoholic bitters, bitters containing alcohol, or fruits preserved in ardent spirits, either by wholesale or retail, or to be drunk at the place where sold, or in any way without first having obtained license therefor; nor shall the license confer the privilege of selling in any way, except in the manner hereinafter provided. And all mixtures, preparations and liquids (except pure apple cider), which will produce intoxication shall be deemed ardent spirits within the meaning of this act"

By an act approved March 14, 1906 (Acts 1906, p. 307, c. 181), entitled "An act to define what is pure cider within the...

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17 cases
  • State v. Lowry
    • United States
    • United States State Supreme Court of Wyoming
    • 27 Febrero 1923
    ...121 N.W. 475; Harris v. State, Tex. 97 S.W. 704; Campbell v. State, Tex. 116 S.W. 581; Spain v. State, Tex. 133 S.W. 1055; Devine v. Commonwealth, Va. 60 S.E. 37; Hyde v. State, Ala. 68 So. 673; Moore v. Ala. 64 So. 520; Hammock v. State, Ala. 62 So. 322; Hill v. City of Prattville, Ala. 69......
  • Wilson v. Com., 0191-91-2
    • United States
    • Court of Appeals of Virginia
    • 6 Abril 1993
    ...this Court was denied and his petition for an appeal to the Supreme Court of Virginia was refused on its merits. In Devine v. Commonwealth, 107 Va. 860, 60 S.E. 37 (1908), the defendant was accused of selling without a license an "ardent spirit" that would produce intoxication. Evidence tha......
  • Cochean v. Commonwealth
    • United States
    • Supreme Court of Virginia
    • 15 Noviembre 1917
    ...within any of such exceptions. Hill's Case, 5 Grat. (46 Va.) 682, 687, et seq.; Hendricks' Case, 75 Va. 934, 943; Devine's Case, 107 Va. 860, 60 S. E. 37, 13 Ann. Cas. 361. 5. We come, now, to the consideration of the instructions offered by the accused and refused by the trial court, and w......
  • Lowery v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 29 Marzo 1916
    ...124 S. W. 956; Doyle v. State, 143 S. W. 630. Vermont. — State v. Carruth, 85 Vt. 271, 81 Atl. 922. Virginia. — Devine v. Commonwealth, 107 Va. 860, 60 S. E. 37, 13 Ann. Cas. 361. Washington. — State v. Davis, 43 Wash. 116, 86 Pac. 201; State v. Seifert, 65 Wash. 596, 118 Pac. Wisconsin. — ......
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