Miller v. Commonwealth

• Decision Date: 18 January 1923
• Citation: 115 S.E. 512
• Parties: MILLER. v. COMMONWEALTH.
• Court: Virginia Supreme Court

115 S.E. 512

MILLER.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 18, 1923.

Error to Circuit Court, Norfolk County.

One Miller was convicted of violating the prohibition law, and he brings error. Affirmed.

N. T. Green and Elliott & Elliott, all of Norfolk, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

BURKS, J. [1, 2] The defendant was convicted of violating the prohibition law and sentenced to confinement in jail for one month and to pay a fine of $250. The only error assigned was the refusal of the trial court to give four instructions tendered by the defendant. These instructions involved several theories, one that the transportation was not illegal unless it was for sale. We held otherwise in Snarr v. Commonwealth, 131 Va. 814, 109 S. E. 590. Another was that transportation by automobile was punishable by section 57 of the prohibition act (Laws 1918, c. 388) and not by sec tion 3, and that transporting whisky from without the state to a point within the state was punishable by section 39 of the act and not by section 3; and hence the omnibus indictment provided by section 7 of the act, and which was the form adopted in this case, was not applicable to such transportations. Section 3 of the act applies to every form of transportation within the state not authorized by the statute, regardless of the method of transportation or the origin of the journey.

Another theory presented by demurrer as well as by the instructions was that the Eighteenth Amendment and the act of Congress known as the Volstead Act (41 Stat. 305) annulled and superseded the prohibition law of the state. We held otherwise in Allen v. Commonwealth, 129 Va. 723, 105 S. E. 589, and Pollard v. Commonwealth, 132 Va. 576 110 S. E. 354.

The testimony of the defendant and of a man who was with him was that they bought a keg of whisky from a negro in North Carolina; that they had bought the whisky for their personal use and not for sale; that they were bringing it at the time for such purpose from the state of North Carolina to their homes in Norfolk city and were passing through Norfolk county at the time of their arrest to their homes in Norfolk city; that they had made no stop after they had purchased the whisky in North Carolina and had no intention of stopping until they had reached their homes in Norfolk city; that this was one continuous trip without stopping until they were arrested by the officers. Upon this testimony no other verdict...