Lynch v. Commonwealth

• Decision Date: 17 November 1921
• Citation: 109 S.E. 418
• Court: Virginia Supreme Court
• Parties: LYNCH. v. COMMONWEALTH.

109 S.E. 418

LYNCH.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov.17, 1921.

Error to Corporation Court of Radford.

Zeigler Lynch was convicted of offering ardent spirits for sale, and brings error. Affirmed.

In this case there was a trial by jury and a verdict finding the accused guilty of offering ardent spirits for sale, contrary to the statute (section 3 of the Prohibition Act of 1918, Acts 1918, p. 578), and fixing the punishment of the accused in accordance with another section of the same act. Whereupon the accused moved the court to set aside the verdict as contrary to the law and the evidence. This motion the court overruled, entered judgment, and sentenced the accused in accordance with the verdict of the jury.

The sole assignment of error is that the court erred in refusing to set aside the verdict of the jury as contrary to the law and the evidence; the position taken in argument for the accused being that the verdict is not supported by the evidence, because the evidence does not show that the accused, at the time he offered the whisky for sale, had the ability to complete the sale in accordance with his offer.

The evidence for the commonwealth consists of the testimony of two witnesses, one of whom testified that he overheard the accused talking to one C. J. Dudley, when the two were in a certain garage together, and that the "accused offered to sell Dudley 50gallons of whisky If he wanted that much" and the other testified as follows:

"I am connected with the —— garage, * * * Accused came to the garage on Sunday. * * * I had C. J. Dudley working for me. I was sitting in the office, and heard loud talking and swearing; * * * heard * » * [the] accused offer to sell Dudley whisky. He [the accused] said, 'I will sell you [Dudley] as much as 50 gallons if you want that much, and bring it to you any time you want it.' I did not infer that he [the accused] had any at that time; said he would get it for him."

The accused testified that he did not offer to sell any whisky. That if he offered to sell Dudley any whisky he was joking, as he (the accused) did not have any whisky at the time and did not know where he could get any.

The case was submitted to the jury upon a single instruction asked for by the accused which, in substance, submitted to the jury for their decision the question of whether or not they believed from the evidence that the commonwealth had proved beyond a reasonable doubt that the accused made the offer to sell as much as 50 gallons of whisky and did so. not as a joke, but, with the intention "to carry out" such offer.

Harless & Calhoun, of Christianburg, for plaintiff in error.

John R. Saunders, Atty. Gen., J. D. Hank, Jr., Asst. Atty. Gen., and Leon M. Bazile, Second Asst. Atty. Gen., for the Commonwealth.

SIMS, J. (after stating the facts as above). The sole question presented for our decision by the assignment of error in this case is as follows:

1. Is the ability, at the time an offer to sell ardent spirits is made, to complete the sale in accordance with the offer, an essential element of the statutory offense of ottering ardent spirits for sale?

The question must be answered in the negative.

It is elementary that an actual offer to sell anything is in itself an implied representation on the part of the person making the offer that he either has at the time, or undertakes to subsequently acquire, the ability to complete the sale in accordance with the offer. The offer to sell, therefore, is complete the moment it is made, and in no way depends for its existence upon the present or future ability of the person making the offer to complete the sale in accordance with the offer. The actual lack of such ability does not afford any ground of defense to the person making the offer in a prosecution under the statute aforesaid, any more that it would in a civil action against him for damages for deceit, or for breach of contract, by one who may have accepted the offer in reliance upon the implied representation or undertaking aforesaid. In neither case would the lack of such ability to complete the sale alter the fact that the offer to sell was made. An offer to sell is one thing. A completed sale is another and different thing.

Of course, to constitute the offense, the offer must have been, at least apparently, an actual offer to sell the whisky, and not a joke. Abstractly speaking, an offer to do something may be so utterly impossible of performance that it cannot reasonably be taken seriously and relied on as an actual offer. We cannot say, however, that the' offer to sell 50 gallons of whisky is per se of that character. And the verdict of the jury, under the instruction given, concluded against the accused the fact that the offer in question was an actual offer, intended by him as such, and not as a joke.

As laid down in the authorities cited for the accused (23 R. C. L. § 61, pp. 1243, 1244, and First Nat. Bank v. Turnbull, 73 Va. [32 Grat] 605, 34 Am. Rep. 791), the actual or potential existence of the thing sold is an essential element of a sale; But that is true only at law, and then only of completed sales. As held in the case just cited, a valid equitable assignment may be made of things not in actual or potential existence at the time of the assignment; and, as stated in the...