Francisco v. Commonwealth

• Decision Date: 07 December 1942
• Citation: 23 S.E.2d 234,180 Va. 371
• Court: Virginia Supreme Court
• Parties: FRANCISCO . v. COMMONWEALTH.

23 S.E.2d 234

180 Va. 371

FRANCISCO .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Dec. 7, 1942.

Error to Circuit Court, Hanover County; Leon M. Bazile, Judge.

M. G. Francisco was convicted of violating the Sunday law, and he brings error. Reversed and remanded.

Before HOLT, HUDGINS, GREGORY, BROWNING, and EGGLESTON, JJ.

George E. Haw and Andrew J. Ellis, both of Richmond, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Edwin B. Jones, Asst. Atty. Gen., for the Commonwealth.

EGGLESTON, Justice.

M. G. Francisco, hereinafter called the defendant, was convicted of violating the Sunday law, Code 1919, § 4570, as amended by Acts 1932, ch. 328, p. 596, and fined $5. The indictment charged the defendant with laboring at his trade and calling by keeping open and maintaining a business for the sale of beer and by selling beer on Sunday. It negatived the fact that this was household work or other work of necessity.

The defendant is a country merchant operating a general store in Hanover county, where he sells general merchandise, gasoline and oil, cigarettes, cigars and to bacco, soft drinks, sandwiches, beer and wine under appropriate licenses. He did not operate his general merchandise business on the Sunday in question, but did sell gasoline and oil, cigarettes and tobacco, soft drinks and ice cream, and beer. This he had done openly on previous Sundays. No complaint was lodged against him for the sale of articles other than beer. There is no suggestion that these sales resulted in disorderly conduct; indeed, the evidence is quite to the contrary.

It developed that throughout Hanover county, which is just north of Richmond, and through which several arterial State highways run, restaurants, filling stations, and the like habitually sell such articles as sandwiches, beer, wine, soft drinks, cigars, cigarettes and tobacco to the local trade, picnickers, tourists, and the traveling public on Sundays. The tourists particularly demand beer on Sundays as well as on other days. Pursuant to this demand at least eighty per cent of those licensed to sell beer in the county sold it openly on Sundays.

The defendant offered to prove that the board of supervisors of the county had considered but failed to adopt an ordinance prohibiting the sale of beer on Sundays pursuant to the Act of 1938, ch. 129, p. 194, as amended by Acts 1940, ch. 25, p. 29, Michie's 1940 Cum.Supp. to Code of 1936, § 4675(83b). On objection this evidence was excluded by the trial court.

The defendant contended that the evidence submitted and that excluded raised a question of fact for the jury, under proper instructions, whether or not the sale of beer on Sundays was a work of necessity within the exception in the statute.

The trial court held that the sale of beer on Sunday was, as a matter of law, not a work of necessity within the meaning of the statute, refused all instructions tendered by the defendant, and instructed the jury that if they believed from the evidence beyond a reasonable doubt that the defendant kept open and maintained a business for the sale of beer and sold beer on the Sunday in question, they should find him guilty. In this situation a verdict of guilty necessarily followed.

Code, § 4570, as amended by Acts 1932, ch. 328, p. 596, reads as follows:

"If a person on a Sunday be found laboring at any trade or calling, or employ his apprentices or servants in labor or other business, except in household or other workof necessity or charity, he shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than five dollars for each offense. Every day any person or servant or apprentice is so employed shall constitute a distinct offense and the court in which or the justice by whom any judgment of conviction is rendered may require of the person so convicted a recognizance in a penalty of not less than one hundred or more than five thousand dollars, with or without security, conditioned that such person shall be of good behavior, and especially to refrain from a repetition of such offense, for a period not exceeding twelve months. This section shall not apply to furnaces, kilns, plants and other business of like kind that may be necessary to be conducted on Sunday, nor to the sale of gasoline, or any motor vehicle fuel, or any motor oil or oils."

In a written opinion, made a part of the record, the trial court took the view that in Hanger v. Commonwealth, 107 Va. 872, '60 S.E. 67, 14 L.R.A..N.S., 683, and in Ellis v. Town of Covington, 122 Va. 821, 94 S.E. 154, this court had decided that as a matter of law the sale of soft drinks, cigarettes and tobacco on Sunday was a violation of the statute, that this principle applied to the sale of beer on Sunday, and that these decisions were binding on the nisi prius courts of. the Commonwealth. Having reached the conclusion that the sale of beer on Sunday was as a matter of law not a work of necessity, it logically followed, that the only question to be submitted to the jury was whether the defendant had made such sales on that day.

The defendant claims that the cases of Hanger v. Commonwealth, supra, decided in 1908, and Ellis v. Town of Covington, supra, decided in 1917, had been modified, if not overruled, by the later cases of Lakeside Inn Corp. v. Commonwealth, 134 Va. 696, 114 S.E. 769; Pirkey Bros. v. Commonwealth, 134 Va. 713, 114 S.E. 764, 29 A.L.R. 1290, both decided in 1922; Crook v. Commonwealth, 147 Va. 593, 136 S.E. 565, 50 A.L.R. 1043, decided in 1927, and Williams v. Commonwealth, 179 Va. 741, 20 S.E.2d 493, decided in 1942.

So much of the opinion in Hanger v. Commonwealth, supra, as is here pertinent, deals with a quo warranto proceeding brought for the purpose of forfeiting a charter granted to the Crawford Social Club, Inc. The Commonwealth success fully contended that the charter of the club had been obtained for the fraudulent purpose of giving to the incorporators the privilege of selling tobacco, cigars, cigarettes, soda water, and other soft drinks on Sundays. This court held that since an individual could not engage in the business of selling such articles, in violation of the Sunday law, a corporation could not be lawfully chartered for such purpose. It seems to have been conceded for the purpose of that case that the sale of such articles was a violation of the statute. Certainly there was no discussion of the proper construction of the statute and no principles of law with respect thereto were laid down.

In Ellis v. Town of Covington, supra, the defendant wa's convicted of selling Coca-Cola on Sunday in violation of a town ordinance which partly paralleled the present State statute, Code, § 4570, as amended. In a single paragraph and without discussing the statute or the meaning of the word necessity, the judgment of the trial court was affirmed.

Hence, neither of these opinions is helpful in arriving at the proper interpretation of the statute. Indeed, they were not referred to in the later decisions * of this court dealing with the question.

Although this statute was enacted in 1779 (12 Hen.Stat. 336, 337), the first full and satisfactory discussion of it is found in the opinion of Judge Burks in Pirkey Bros. v. Commonwealth, supra. There the defendants had been convicted by a jury of violating the statute by keeping open for tourists on Sunday a cavern in Augusta county. The conviction was sustained.

In an exhaustive opinion Judge Burks gives the background and history of the statute and reviews many cases construing similar laws in other jurisdictions. He points out (134 Va. at page 717, 114 S.E. at page 765, 29 A.L.R. 1290) that the statute "cannot be enforced as a religious observance, " as that is forbidden by our Declaration of Religious Freedom, incorporated in our Bill of Rights, Constitution, § 16, and Jefferson's Statute of Religious Freedom, now incorporated in Code, § 34, but that it is enforceable as a valid exercise of the police power of the State; that the purpose of the statute is to protect all persons from the physical and moral debasement which comes from uninterrupted labor, the necessity for which is recognized by legislation, both State and Federal.

134 Va. at pages 724, 725, 114 S.E. at page 767, 29 A.L.R. 1290.

These principles have been upheld by numerous decisions from other jurisdictions. See, 25 R.C.L., Sundays and Holidays, § 4, pp. 1414-15; § 6, p. 1416; 60 C.T., Sundays, § 7, pp. 1029-30; § 8, p. 1030; § 9, pp. 1032-34.

The opinion points out that, "No fixed and unvarying definition of 'necessity' as used in the statute can be given. What may be a necessity in one place may not be in another" (134 Va. at page 723, 114 S.E. at page 767, 29 A.L.R. 1290); that "The statute should also be construed in the light of the age in which we live, recognizing the fact that there are things which the community regard as necessary that were not necessities when the statute was first enacted" (134 Va. at page 726, 114 S.E. at page 768, 29 A.L.R. 1290); and "that what is or is not a necessity is generally a question of fact for the jury, and not one of law for the court". 134 Va. at page 726, 114 S.E. at page 768, 29 A.L.R. 1290.

The principles laid down in this case were approved in Lakeside Inn Corp. v. Commonwealth, supra, in Crook v. Commonwealth, supra, and in Williams v. Commonwealth, supra.

In Lakeside Inn Corp. v. Commonwealth, supra, it was held that it was a question of fact to be determined by the jury, and not a question of law to be determined by the court, whether the operation of a swimming pool on Sunday, near the city of Roanoke, was or was not a work of necessity. There a judgment of conviction was reversed.

In Crook v. Commonwealth, supra, it was held to be a jury question, under proper instructions, whether the playing of baseball by professional players on Sunday was or was not a work of necessity. There a judgment of conviction pursuant to a jury's verdict was sustained by three...