Dix v. Commonwealth

• Decision Date: 10 March 1910
• Citation: 67 S.E. 344,110 Va. 907
• Parties: DIX v. COMMONWEALTH.
• Court: Virginia Supreme Court

67 S.E. 344

110 Va. 907

DIX

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 10, 1910.

1. Intoxicating Liquors (§ 215^*)—Prosecution—Indictment—Sufficiency.

An indictment alleging, that accused, within six months last past, in a certain magisterial district in the county, unlawfully sold and delivered intoxicating liquors and mixtures thereof, against the peace, etc., notified accused of the charge against him, and was sufficient.

[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 258-260; Dec. Dig. § 215.*]

2. Criminal Law (§ 678*) — Election Between Acts—Discretion of Trial Court.

Where, in a prosecution for unlawfully selling intoxicating liquors, the court, at the conclusion of the commonwealth's evidence, required it to specify the sale for which it sought a conviction, and accused was convicted upon the specific offense indicated by the prosecuting attorney, the discretion vested in the trial court in such cases was properly exercised.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1580-1583; Dec. Dig. § 678:* Indictment and Information, Cent. Dig. §§ 425-437.]

3. Criminal Law (§ 1141*)—Appeal—Review of Sufficiency of Evidence—Consideration as on Demurrer.

On review on writ of error of a judgment of conviction for unlawfully selling intoxicating liquors, a contention that the evidence is insufficient to support the verdict is considered as upon a demurrer to the evidence.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 3014; Dec. Dig. § 1141.*]

4. Criminal Law (§ 939*) — New Trial — Grounds—Newly Discovered Evidence.

Where, though alleged newly discovered evidence was known to accused during the trial, he did not ask for delay or process to procure the witness who would testify to such evidence, a new trial for the purpose of procuring such evidence was properly refused.

[Ed. Note.—For other eases, see Criminal Law, Cent. Dig. §§ 2318, 2320; Dec. Dig. § 939.*]

Error to Circuit Court, Lancaster County.

Frank Dix was convicted of unlawfully selling intoxicating liquors, and he brings error. Affirmed.

W. B. Sanders and T. J. Downing, for plaintiff in error.

The Attorney General, for the Commonwealth.

HARRISON, J. This writ of error is to a judgment against the plaintiff in error for unlawfully selling intoxicating liquors.

We are of opinion that the circuit court did not err in overruling the demurrer to the indictment and the motion to quash the same upon the ground that it fails to give the accused notice of the charge against him. The indictment sets forth "that Frank Dix, within six months last past, in White Stone magisterial district, in the county of Lancaster, did unlawfully sell and deliver intoxicating liquors and mixtures thereof, against the peace and dignity of the commonwealth of Virginia." The sufficiency of this indictment has been sustained fey repeated decisions of this court. Fletcher's Case, 100 Va. 840, 56 S. E. 149; White's Case, 107 Va. 901, 59 S. E. 1101; Runde's Case, 108 Va. 873, 61 S. E. 792.

We are further of opinion that there was no error in overruling the motion of the defendant, asking that the commonwealth be required to elect some specific sale before the introduction of any testimony on her behalf.

This question has been considered and settled by Hatcher's Case, 106 Va. 831, 55 S. E. 677. It is there said, citing Bishop's New Crim. Proc. § 462: "The better view seems to be that that question should be left to the discretion of the trial judge, to be exercised with reference to the special facts of the case; but, " as Mr. Bishop says, "whatever is done at the earlier stages of the trial, plainly, as a general rule, the election should be required before the prisoner opens his defense."

The record here shows that at the conclusion of the commonwealth's evidence the court, in the exercise of its discretion, required the...