Mckay v. Commonwealth
| Citation | 120 S.E. 138 |
| Court | Virginia Supreme Court |
| Decision Date | 15 November 1923 |
| Parties | McKAY . v. COMMONWEALTH. |
M. C. McKay was convicted of a second offense under the state prohibition law, and he brings error. Judgment reversed, and cause remanded for new trial.
Curry & Curry and Timberlake & Nelson, all of Staunton, for plaintiff in error.
John R. Saunders, Atty. Gen., for the Commonwealth.
WEST, J. M. C. McKay was convicted of a second offense under the state prohibition law and sentenced to the penitentiary for 2 1/2 years. To that judgment this writ of error was awarded.
The indictment is in the "omnibus" form authorized by section 7 of the Prohibition Act (Acts 1918, c. 388), and the commonwealth relied on the charge of unlawfully transporting ardent spirits.
The prior conviction of the accused is alleged in these words:
It is conceded that the evidence was sufficient to support a conviction for unlawfully transporting ardent spirits, but contended that there can be no conviction for a second offense, because the police justice of the city of Roanoke had no jurisdiction in eases arising under the prohibition law of Virginia, and a prior conviction under the prohibition ordinance of the city would not support the charge of second offense under the statute.
The defendant relies on four assignments of error, but, in our view, it is necessary to discuss only one question: What constitutes a "first conviction" under the state prohibition law?
Section 4 of the act provides as follows:
"Violations of Provisions of the Preceding Sections; Acting as Agent of Seller or Purchaser.—Any person who shall violate any of the provisions of section three and three-a of this act, and any person, except a common carrier, who shall act as the agent or employee of such manufacturer or such seller, or person in so keeping, storing, offering or exposing for sale such ardent spirits, or act as the agent or employee of the purchaser in purchasing such ardent spirits, except as herein provided, shall be deemed guilty of a misdemeanor for the first offense, and of a felony for any sulse- quent offense committed after the first conviction: Provided, that the offense of drinking, giving away, or receiving ardent spirits contrary to the provisions of this act, shall not be deemed a felony in any case; and provided, further, that the purchasing or having in possession by any person of ardent spirits for personal use, shall in no case be deemed a felony, but the burden of proof that said ardent spirits are for personal use shall be upon the defendant." (Italics supplied.)
Section 5 fixes the penalty, where any violation of the act is declared a felony, at confinement in the penitentiary for not less than one nor more than five years, or, in the discretion of the jury, at confinement in jail not less than six nor more than twelve months, and a fine not exceeding $500.00.
The Roanoke ordinance does not in terms adopt the state Prohibition Act.
The provisions of section 3 of the ordinance and of section 3 of the act are in substantially the same language. But section 5 of the ordinance provides that:
"The penalty for any subsequent offense committed after the first conviction shall be a fine of not less than $100 nor more than $5,000, and imprisonment in jail for not less than six months, nor more than one year, "
—although section 27 of the act declares that the penalties prescribed for the violation of city and town...
To continue reading
Request your trial
-
State v. 1920 Studebaker Touring Car
...title until the automobile has been fully paid for is not entitled to recover. Cornelius, Search and Seizure, 608-611; McKay v. Commonwealth, 137 Va. 826, 120 S.E. 138. It not error for the circuit court to admit the evidence on rebuttal complained of by the appellant. Some of that evidence......
-
State v. End
...97 Kan. 147, 154 P. 261; State v. Parris, 89 S.C. 140, 71 S.E. 808; Trivillion v. State, 195 Miss. 308, 15 So.2d 285; McKay v. Commonwealth, 137 Va. 826, 120 S.E. 138; Grimes v. State, 236 Wis. 31, 293 N.W. 925. See, Underhill, Criminal Evidence (4th ed.) § 822; 25 Am.Jur., Habitual Crimina......
-
Macke v. Commonwealth
...ambiguous as to leave reasonable doubt of its meaning, it is the duty of the court to refuse to impose the penalty." McKay Commonwealth, 137 Va. at p. 830, 120 S.E. 138, 139; Faulkner Town of South Boston, 141 Va. 517, 127 S.E. 380; Jordan Town of South Boston, 138 Va. 838, 122 S.E. "It is ......
-
Price v. Com.
...the words 'property of another' in the statute under which he was indicted included property of a city. In McKay v. Commonwealth, 137 Va. 826, at 830, 120 S.E. 138, at 139, this court said that a penal statute cannot be extended by implication or construction, 'To constitute the offense the......