Mawyer v. Commonwealth

• Decision Date: 13 November 1924
• Citation: 125 S.E. 317
• Parties: MAWYER. v. COMMONWEALTH.
• Court: Virginia Supreme Court

125 S.E. 317

MAWYER.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 13, 1924.

Error to Circuit Court, Nelson County.

E. N. Mawyer was convicted of possessing still, etc., for manufacture of ardent spirits, and brings error. Affirmed.

L. Grafton Tucker, of Lovingston, for plaintiff in error.

John R. Saunders, Atty. Gen., and Leon M. Bazile and Lewis H. Machen, Asst. Attys. Gen., for the Commonwealth.

PRENTIS, J. The accused is here complaining of a conviction which is based upon this record:

The indictment reads:

"Virginia, Nelson County—to wit: In the Circuit Court of the said County. "The jurors of the grand jury, in and for the county aforesaid, impaneled and sworn at the term hereof commencing on the 28th day of January, 1924, and now attending said court, upon their oath present that E. N. Mawyer, within one year and prior to the finding of this indictment, in the said county, did unlawfully manufacture, transport, sell, offer, keep, store, and expose for sale, give away, dispense, solicit, advertise, and receive orders for, ardent spirits against the peace and dignity of the commonwealth of Virginia.

"Count 2.

"And the jurors aforesaid, upon their oath aforesaid, do further present that —, within one year next preceding the finding of this indictment, to wit, on the —day of —, 19—, did unlawfully transport from one point in this state to another point in this state, in the county of —, to wit, from — county to —county, ardent spirits in excess of one quart within a period of 30 days, against the peace and dignity of the commonwealth of Virginia.

"Count 3.

"And the jurors aforesaid, upon their oath aforesaid, do further present that —, within one year next preceding the finding of this indictment, did unlawfully in said county take a drink of ardent spirits in a public place against the peace and dignity of the commonwealth of Virginia.

"Count 4.

"And the jurors aforesaid, upon their oath aforesaid, do further present that E. N. Mawyer, within one year next preceding the finding of this indictment, in said county, did unlawfully have in his possession a still, still cap and worm, mash, and other material to manufacture ardent spirits against the peace and dignity of the commonwealth of Virginia.

"Upon the information of —. Witnesses called on by the grand jury, sworn in court, and sent to the grand jury to give evidence. "A true bill. W. T. Whitten, Foreman."

The accused pleaded not guilty, and the only evidence introduced for the commonwealth is sufficient to prove that he was guilty under the last count of having in his possession "a still, still cap and worm, mash, " and several barrels of cider, for the purpose of illegally manufacturing ardent spirits. There was no evidence applicable to the alleged count that he had illegally transported any ardent spirits, nor is there the slightest allusion to that offense in the testimony.

The jury returned a verdict in these words:

"We, the jury, find the defendant guilty on the second count and fix his punishment at one month in jail and $75 fine."

The trial court overruled the motion of the accused to set aside this verdict as contrary to the law and the evidence, and the exception to this ruling presents the single assignment of error.

It is stated in the brief for the commonwealth, and not denied, that the indictment found is on a printed form. While this is doubtless explanatory of the fact that the counts entitled count 2 and count 3 did not name the defendant, and that none of the blanks therein are filled, it does not change the legal result, which would have been the same, whether the original blank form had been printed or written. The argument for the accused is based upon the well-settled rules that the evidence must support the verdict, and that the finding of the accused guilty upon one count operates to acquit him of the offenses charged in all of the other counts; the claim being that, as there is no evidence to show that the accused ever unlawfully transported intoxicating liquor in this state, which is the charge to which the blank count 2 was directed, therefore he must be discharged as acquitted.

This contention cannot be sustained for three reasons:

1. Because there were but two counts in the indictment; that is, the unnumbered first count, and the only other count in the indictment, numbered 4. The blank paragraphs in the indictment are not counts, because it is perfectly apparent...