Helfrick v. Commonwealth
| Decision Date | 07 February 1878 |
| Citation | 70 Va. 844 |
| Parties | HELFRICK v. THE COMMONWEALTH. |
| Court | Virginia Supreme Court |
If an indictment for a statutory offence, by following the language of the statute, charges expressly or by necessary implication, every fact necessary to constitute the offence it is sufficient.
The provision of the act of the general assembly of March 30th 1877, known as the Moffett register law, which directs that the cities of the Commonwealth shall be first supplied with the registers, is not unconstitutional as being an unjust and partial discrimination against liquor dealers in the cities.
The case is sufficiently stated in the opinion.
John B. Young, for the appellant.
The Attorney General, for the Commonwealth.
The first error assigned in the petition is to the judgment of the hustings court overruling the defendant's motion to quash the indictment for defects apparent on its face. The indictment charges that the defendant, Helfrick, on the 19th of September, 1877, did sell and deliver to one Warren L. Wheelright, one drink of malt liquor, and unlawfully did, then and there, wilfully fail, immediately upon the sale of said drink of malt liquor, in the presence of the said Warren L. Wheelright, to turn the crank of the proper register until the bell thereof had struck once, and the indicator on the dial of said register had moved one point for the said drink of malt liquor so sold by him, the said Phillip Helfrick as aforesaid, the said Phillip Helfrick being then and there a bar-room keeper and a licensed bar-room liquor dealer.
The point made by the defendant's counsel is, that the indictment does not show, nor does it otherwise appear, that the malt register had been placed in the defendant's bar-room in the manner required by the act of March 30th, 1877; the third and fourth sections of that act provided for the construction of the registers, and prescribed the mode in which they should be placed in the bar-rooms of every licensed bar-room liquor dealer, and until this was done, no such dealer could be required to discharge the duties enjoined; and the indictment upon its face should show by direct averment that the register had been placed in the bar-room of the defendant. Conceding that such an averment is essential, we are of opinion that in this case it has been made, if not directly, at least by inevitable intendment.
It is averred that the defendant failed to turn the crank of the proper register until the bell thereof had struck once and the indicator on the dial of said register had moved one point. This is substantially a charge that there was a register in the defendant's bar-room at the time alleged. The indictment pursues the language of the statute; and this is generally sufficient. The rule laid down by the authorities is, if every fact necessary to constitute the offence is charged or necessarily implied by following the language of the statute, the indictment will undoubtedly be sufficient.
In Rex v. Lauby, 2 Strange R. 903, on an information for attempting to persuade a witness not to appear and give evidence against Japhet Crooke for forgery, it was objected that the information did not positively aver that Crooke was indicted. It was only laid that the defendant, knowing that Crooke had been indicted and was to be tried, did so and so; whereas, in all criminal cases, the fact must be positively alleged and not by inference. The court of king's bench held the information good. It is said, And so here, if no register is proved on the trial to have been placed in the defendant's bar-room, he must have been acquitted.
The case of the United States v. Mills, 7 Peters, R. 138, is perhaps a still stronger authority. There the indictment alleged that the defendant procured and advised Joseph J. Straughan, a mail carrier, to rob the mail. It was objected that the indictment ought to aver directly that the carrier did in fact commit the offence of robbing the mail. The supreme court said it must appear upon the indictment undoubtedly, that the mail had been robbed, but it was of opinion that the indictment sufficiently alleged that fact. It charged the defendant not only with advising but procuring and assisting Straughan to secrete and embezzle. This necessarily implied that the act was done, and is such an averment or allegation as made it necessary on the part of the prosecution to prove that the robbery had been committed. If authorities were needed upon this question, we think these are sufficient.
The main ground of objection, however, to the indictment is founded upon the alleged unconstitutionality of the act of March 30th, 1877. The provision to which this objection is particularly directed is found in the 3d section of chapter 253 of that act. It declares It is insisted that so much of this section as directs the cities first to be supplied with registers is an invidious and unjust discrimination against the city liquor dealers, and in favor of the country dealers; that the effect is to impose upon the former a new and burdensome system of taxation, fro which the latter are wholly exempt for a considerable period, and thus to violate the rule which secures equality and uniformity of taxation upon all engaged in the same business.
This objection is a very grave one, striking at the foundation of the act...
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City Of Hampton v. Ins. Co. Of North Am.
...upon benefits bestowed, which this is said to be, uniformity is non-existent. This court said in Helfrick's case, Helf rick v. Com., 70 Va. 844, 29 Grat. 844, 849: "If * * * inequality and want of uniformity in the burthen it imposes * * * are stamped upon the face of the law, * * * the law......